Antonio Lamar Dever v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00296-CR
ANTONIO LAMAR DEVER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1344571D
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MEMORANDUM OPINION1
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Pursuant to a plea bargain, Appellant Antonio Lamar Dever pleaded guilty
to assault on a family member by impeding her breath/circulation. See Tex.
Penal Code Ann. § 22.01(b)(2)(B) (West Supp. 2014). In accordance with the
terms of the plea bargain, the trial court placed him on two years’ community
supervision, sentenced him to pay a $200 fine, and ordered him to pay $80 in
1
See Tex. R. App. P. 47.4.
restitution. The State subsequently filed a petition to proceed to adjudication,
alleging that Dever had violated five conditions of his community supervision.
The State waived all but one allegation, and Dever pleaded “true” to that
allegation. The trial court found that allegation was true, adjudicated Dever
guilty, and sentenced him to nine years’ confinement. This appeal followed.
Dever’s court-appointed appellate counsel has filed a motion to withdraw
as counsel and a brief in support of that motion. Counsel’s brief and motion meet
the requirements of Anders v. California2 by presenting a professional evaluation
of the record demonstrating why there are no arguable grounds for relief. In
compliance with Kelly v. State,3 counsel notified Dever of his motion to withdraw,
provided him a copy of the brief, informed him of his right to file a pro se
response, informed him of his pro se right to seek discretionary review should
this court hold the appeal is frivolous, and took concrete measures to facilitate
Dever’s review of the appellate record by providing him with a copy of the Clerk’s
and Reporter’s Records. This court afforded Dever the opportunity to file a brief
on his own behalf, but he did not do so.
As the reviewing court, we must conduct an independent evaluation of the
record to determine whether counsel is correct in determining that the appeal is
frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991);
2
386 U.S. 738, 87 S. Ct. 1396 (1967).
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436 S.W.3d 313, 319 (Tex. Crim. App. 2014).
2
Mays v. State, 904 S.W.2d 920, 923 (Tex. App.—Fort Worth 1995, no pet.). Only
then may we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S.
75, 82–83, 109 S. Ct. 346, 351 (1988).
We have carefully reviewed the record and counsel’s brief. We agree with
counsel that this appeal is wholly frivolous and without merit; we find nothing in
the record that arguably might support an appeal. See Bledsoe v. State, 178
S.W.3d 824, 827–28 (Tex. Crim. App. 2005). Accordingly, we grant counsel’s
motion to withdraw and affirm the trial court’s judgment.
PER CURIAM
PANEL: WALKER, GARDNER, and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 26, 2015
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