Dwight Glen Graves v. State

NO. 12-18-00319-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DWIGHT GLEN GRAVES, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Dwight Glen Graves appeals his conviction for assault family violence with a previous
conviction. Appellant’s counsel filed a brief in compliance with Anders v. California, 386 U.S.
738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim.
App. 1969). We affirm.
BACKGROUND
Appellant was indicted for the third-degree felony offense of assault family violence with
a previous conviction. 1 However, the State also alleged in the indictment that Appellant had a
prior felony conviction for obstruction or retaliation, enhancing the punishment level to that of a
second-degree felony. 2 Appellant pleaded “not guilty” to the offense.
At the ensuing jury trial, Smith County Sheriff’s Department Deputy Tony Rucker testified
that he received a 9-1-1 call for an assault at a residence owned by Appellant’s mother. When
Deputy Rucker arrived at the scene, he encountered Appellant, who was intoxicated, had an
1
See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2)(A) (West Supp. 2019).
2
See TEX. PENAL CODE ANN. §§ 12.42(a) (West 2019), 36.06 (West 2016).
agitated demeanor, and had blood dripping from his mouth. During his investigation, Deputy
Rucker learned that Appellant lived at the home, along with his mother, niece, and nephew.
Appellant had been drinking liquor throughout the day. Appellant’s mother, the victim, also
consumed a couple of alcoholic beverages prior to this incident.
Deputy Rucker interviewed Appellant, along with his mother, nephew, and niece. He
learned that Appellant initially became upset when a dog urinated on the floor. Appellant
subsequently had an argument with his sister, who lived next door but spent the evening at her
mother’s home visiting the family. Appellant’s fourteen year old nephew, who was in his
bedroom, became concerned about the shouting. Consequently, he entered the living room and
asked them to cease their argument. Appellant aggressively approached his nephew and the two
began arguing. According to Appellant’s nephew, the argument briefly subsided. Shortly
thereafter, Appellant became aggressive again and told his nephew that the pair would fight when
he turned eighteen years old. The argument further escalated and they both began shouting at each
other while standing face to face. Appellant’s mother became concerned, interjected herself
between them, and pushed Appellant away in an effort to prevent further escalation into a physical
fight. Whether due to Appellant’s intoxicated state or the aggressiveness of his mother’s shoves,
Appellant stumbled backward.
Appellant then grabbed or struck his mother’s arms near her wrist in an aggressive
manner. Appellant’s mother recently had surgery on one of her arms, but Deputy Rucker observed
bruises on both arms near her wrists where Appellant struck her. The bruises appeared to be
unrelated to her surgery. Appellant knew that she had surgery and was accordingly vulnerable to
injury. During the fracas, Appellant’s mother fell. Enraged, the nephew punched Appellant in the
mouth. Appellant never struck his nephew. When Deputy Rucker interviewed Appellant’s
mother, she repeatedly grabbed at her wrists as if she was injured. When the deputy asked, she
confirmed that she had pain in her arms due to the strikes. Deputy Rucker explained that he
arrested Appellant for assault family violence, but chose not to arrest Appellant’s mother or
nephew.
After the close of evidence, Appellant successfully obtained inclusion of a self-defense
instruction in the jury charge. The jury, after weighing the evidence, found Appellant guilty of the
offense. At the punishment hearing, Appellant pleaded “true” to the enhancement allegation, and
2
after hearing evidence, the jury sentenced Appellant to ten years of imprisonment. This appeal
followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant’s appellate counsel filed a brief in compliance with Anders v.
California and Gainous v. State. Appellant’s counsel relates that he reviewed the record and
found no reversible error or jurisdictional defect. In compliance with High v. State, 573 S.W.2d
807 (Tex. Crim. App. [Panel Op.] 1978), counsel’s brief contains a professional evaluation of the
record demonstrating why there are no arguable grounds to be advanced. 3
We considered counsel’s brief and conducted our own independent review of the
record. Id. at 811. We found no reversible error.
CONCLUSION
As required by Anders and Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991),
Appellant’s counsel moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407
(Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the
merits. Having done so, we agree with counsel that the appeal is wholly frivolous. Accordingly,
we grant Appellant’s counsel’s motion for leave to withdraw and affirm the trial court’s
judgment. Appellant’s counsel has a duty to, within five days of the date of this opinion, send a
copy of the opinion and judgment to Appellant and advise him of his right to file a petition for
discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. Should
Appellant wish to seek review of this case by the Texas Court of Criminal Appeals, he must either
retain an attorney to file a petition for discretionary review on his behalf or he must file a pro se
petition for discretionary review. Any petition for discretionary review must be filed within thirty
days from the date of either this opinion or the date that the last timely motion for rehearing is
overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be
filed with the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition for
3
In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief, notified
Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took
concrete measures to facilitate Appellant’s review of the appellate record. 436 S.W.3d 313, 319 (Tex. Crim. App.
2014). Appellant was given time to file his own brief. The time for filing such a brief has expired, and no pro se brief
has been filed.
3
discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of
Appellate Procedure. See In re Schulman, 252 S.W.3d at 408 n.22.
Opinion delivered March 25, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
4
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MARCH 25, 2020
NO. 12-18-00319-CR
DWIGHT GLEN GRAVES,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0459-18)
THIS CAUSE came to be heard on the appellate record and brief filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.