Brian Matthew Bennett v. State

NUMBER 13-19-00298-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
BRIAN MATTHEW BENNETT, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 66th District Court
of Hill County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Perkes
Memorandum Opinion by Justice Perkes
A jury convicted appellant Brian Matthew Bennett of assault on a public servant, a
third-degree felony. See TEX. PENAL CODE ANN. § 22.01(b)(1). Appellant pleaded true to
both felony enhancement paragraphs in the indictment and the jury assessed punishment
at seventy years’ imprisonment in the Institutional Division of the Texas Department of
Criminal Justice. See id. § 12.42(d).
 Appellant filed a notice of appeal. Appellant’s court-appointed counsel, however,
filed an Anders brief stating that there are no arguable grounds for appeal. See Anders v.
California, 386 U.S. 738, 744 (1967). We affirm.1
I. ANDERS BRIEF
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
has filed a motion to withdraw and a brief stating that his review of the record yielded no
grounds of error upon which an appeal can be predicated. See id. Counsel’s brief meets
the requirements of Anders as it presents a professional evaluation demonstrating why
there are no arguable grounds to advance on appeal. See In re Schulman, 252 S.W.3d
403, 407 n.9 (Tex. Crim. App. 2008) (“In Texas, an Anders brief need not specifically
advance ‘arguable’ points of error if counsel finds none, but it must provide record
references to the facts and procedural history and set out pertinent legal authorities.”
(citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex. App.—Corpus Christi–Edinburg
2003, no pet.))); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 318–19 (Tex. Crim. App. 2014),
appellant’s counsel carefully discussed why, under controlling authority, there is no
reversible error in the trial court’s judgment. Counsel has informed this Court, in writing,
that counsel has: (1) notified appellant that counsel has filed an Anders brief and a motion
to withdraw; (2) provided appellant with copies of both pleadings; (3) informed appellant
1 This case was transferred to us from the Tenth Court of Appeals in Waco pursuant to a docket
equalization order by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
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of his rights to review the record, file a pro se response,2 and seek discretionary review
if this Court concludes that the appeal is frivolous; and (4) provided appellant with a form
motion for pro se access to the appellate record that includes the Court’s mailing address,
instructions to file the motion within ten days, and only requires appellant’s signature and
the date. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 318–19. Appellant requested
and was provided pro se access to the appellate record. Appellant then filed a pro se
response, alerting the Court to the issues he believes warrant an appeal.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80 (1988). We may determine the appeal is wholly frivolous and issue an opinion after
reviewing the record and finding no reversible error. Bledsoe v. State, 178 S.W.3d 824,
826–27 (Tex. Crim. App. 2005). Alternatively, if we determine that arguable grounds for
appeal exist, we must remand for the appointment of new counsel to brief those issues.
Id. at 827.
We have conducted an independent review of the record, including appellate
counsel’s brief and appellant’s response, and find no reversible error.3 See id. at 827–28
2 The Texas Court of Criminal Appeals has held that “the pro se response need not comply with
the rules of appellate procedure in order to be considered. Rather, the response should identify for the court
those issues which the indigent appellant believes the court should consider in deciding whether the case
presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008)
(quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
3 Our independent review of the record revealed that appellant’s trial counsel notified the trial court
during a pretrial hearing that he needed to “file some competency motions.” It is unclear from the record
what steps, if any, were taken in this regard. “If a trial judge has a bona fide doubt about the competency
of the defendant, he or she shall conduct an informal inquiry to determine if there is evidence that would
support a finding of incompetence.” Montoya v. State, 291 S.W.3d 420, 425 (Tex. Crim. App. 2009)
(interpreting TEX. CODE CRIM. PROC. ANN. art. 46B.004(b)). However, we give deference to a trial court’s
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(“Due to the nature of Anders briefs, by indicating in the opinion that it considered the
issues raised in the briefs and reviewed the record for reversible error but found none,
the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1.”);
Stafford, 813 S.W.2d at 509. We agree with counsel that the record presents no arguably
meritorious grounds for review, and an appeal would be frivolous. See Garner v. State,
300 S.W.3d 763, 766 (Tex. Crim. App. 2009); Bledsoe, 178 S.W.3d at 826–27.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s attorney has asked this Court for
permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744; see also
In re Schulman, 252 S.W.3d at 408 n.17 (“[I]f an attorney believes the appeal is frivolous,
he must withdraw from representing the appellant.” (quoting Jeffery v. State, 903 S.W.2d
776, 779–80 (Tex. App.—Dallas 1995, no pet.))).
We grant counsel’s amended motion to withdraw. Within five days of the date of
this Court’s opinion, counsel is ordered to send a copy of this opinion and this Court’s
judgment to appellant and to advise him of his right to file a petition for discretionary
review.4 See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 412 n.35; Ex parte
Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
decision not to conduct an inquiry and the record before us does not support a showing of defendant’s
incompetency. See id. at 426. Therefore, we conclude that no arguable grounds for appeal exist on the
issue of competency. See id.
4 No substitute counsel will be appointed. Should appellant wish to seek further review of this case
by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary
review or 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 last timely motion for rehearing or timely motion
for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for
discretionary review must be filed with the clerk of the Court of Criminal Appeals. See id. R. 68.3. Any
petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure
68.4. See id. R. 68.4.
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IV. OTHER PRO SE FILINGS
Appellant’s pro se response included a “Motion for Protective Order” requesting
that this Court prevent appellant from being “return[ed] to Hill County Jail for any purposes
due to legal issues.” Appellant has since filed a second “Motion for Protective Order”
against the “Hill County Sheriff’s Office,” as well as several other requests for affirmative
relief against other nonparties. Our jurisdiction in this proceeding is limited to reviewing
appellant’s criminal conviction in the trial court. See TEX. CONST. art. V, § 6; TEX. GOV’T
CODE ANN. § 22.221. Accordingly, we deny both of appellant’s motions and dismiss his
other requests for affirmative relief without prejudice.
V. CONCLUSION
We affirm the trial court’s judgment.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
27th day of February, 2020.
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