Donnie Ray Jones v. State

AFFIRM; Opinion Filed March 8, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01321-CR
No. 05-19-01563-CR
DONNIE RAY JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F17-71725-V & F17-57638-V
MEMORANDUM OPINION
Before Justices Schenck, Smith, and Garcia
Opinion by Justice Schenck
Donnie Ray Jones appeals his two convictions for assault causing bodily
injury, each enhanced with a finding the assault involved family violence under
article 42.013 of the code of criminal procedure. We affirm the trial court’s
judgments in both cases. Because all issues are settled in law, we issue this
memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
Appellant was indicted on two counts of third-degree felony offenses of
assault against a member of appellant’s household and with whom appellant had a
dating relationship. Each indictment included an enhancement paragraph, alleging
appellant had been previously convicted of the felony offense of burglary of a
habitation. The offenses were alleged to have been committed on August 18 and 25
of 2017. Appellant pleaded guilty to both charges and judicially confessed the
offenses. In each case, appellant signed a plea agreement, which the trial court
accepted. Pursuant to these agreements, the trial court found the evidence sufficient
to find appellant guilty on his original pleas of guilty but made no finding of guilt
and placed appellant on a five-year deferred community supervision in each case.
On April 26, 2019, the State of Texas filed amended motions to adjudicate in
both cases, alleging that appellant had violated his conditions of community
supervision in each case. On October 24, 2019, the trial court conducted a hearing
on both cases. Appellant entered a plea of true to several, but not all, of the
allegations in each motion. After the trial court accepted appellant’s plea of true in
each case, and after hearing the evidence from both sides, the trial court revoked
appellant’s community supervisions and adjudicated and assessed appellant’s
punishment at 10 years in the Texas Department of Criminal Justice in both cases.
The trial court’s certification of Defendant’s Right to Appeal was filed with the court
on October 24, 2019. Appellant filed a motion for new trial in each case, both of
which were overruled. Appellant filed a notice of appeal in each case.
–2–
DISCUSSION
Appellant’s appointed counsel filed a single Anders brief and motion to
withdraw addressing all of the cases stating that he diligently reviewed the entire
appellate record and that, in his opinion, there are no meritorious issues on
appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel’s brief meets
the requirements of Anders as it presents a professional evaluation showing why
there are no non-frivolous grounds for advancing an appeal. See In re Schulman,
252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App.
[Panel Op.] 1978), appellant’s counsel has carefully discussed why, under
controlling authority, an appeal from the judgments and sentences is without merit
and frivolous because the record reflects no reversible error and, in his opinion, there
are no grounds upon which an appeal can be predicated. Counsel specifically noted,
from his review of the following, that he found no issues presented for review: (1)
the sufficiency of the indictment,1 (2) competency,2 (3) pretrial motions,3 (6) jury
1
The indictments contain all elements of the offenses and conferred jurisdiction on the trial court.
2
The trial court admonished appellant at the plea proceedings and made findings in the judgments that
appellant was mentally competent to enter the pleas.
3
No pretrial motions filed and thus no ruling on any pretrial motions to support an appeal.
–3–
waiver and pleas of guilty,4 (7) sufficiency of the evidence,5 and (8) right to
appeal.6 In addition, counsel reviewed the performance of trial counsel and
concluded the record does not reflect counsel failed to interpose a proper objection
that might have preserved reversible error and states nothing in the record suggests
the punishment assessed is grossly disproportionate to the crime.7
Counsel delivered a copy of the brief to appellant, and by letter dated April
22, 2020, we advised appellant of his right to file a pro se response by May 8, 2020.
See Kelly v. State, 436 S.W.3d 313, 319–21 (Tex. Crim. App. 2014) (noting
appellant has right to file pro se response to Anders brief filed by counsel). We
advised appellant that failure to file a pro se response by that date would result in the
case being submitted on the Anders brief alone. Appellant did not file a response.
Upon receiving an Anders brief, this Court must conduct a full examination
of all proceedings to determine whether the case is wholly frivolous. Penson v.
Ohio, 488 U.S. 75, 80 (1988). Having reviewed the entire record and counsel’s brief,
4
Record contains written waiver of jury trial as required by Texas Code of Criminal Procedure. All
requirements of articles 1.13, 1.14, and 1.141 of the code of criminal procedure were met.
5
Appellant executed written sworn judicial confessions in which he stated that he committed each
element of the primary offense exactly as alleged in the indictments.
6
The trial court’s certification of appellant’s right to appeal was filed in each case.
7
We need not determine whether the trial court’s inquiry of trial counsel, as to whether there was any
reason at law that appellant could not be sentenced, afforded appellant the right of allocution because
controlling precedent requires that a defendant timely object to complain about a denial of the right of
allocution and no objection appears in the record. See Gallegos-Perez v. State, No. 05-16-00015-CR, 2016
WL 6519113, at *2 (Tex. App.—Dallas Nov. 1, 2016, no pet.) (mem. op., not designated for publication)
(citing Tenon v. State, 563 S.W.2d 622, 623 (Tex. Crim. App. 1978) (panel op.)).
–4–
we find nothing that would arguably support the appeals. See Bledsoe v. State, 178
S.W.3d 824, 826–28 (Tex. Crim. App. 2005) (explaining appellate court’s duty in
Anders cases). Accordingly, we affirm the trial court’s judgments.
In accordance with Anders, counsel has filed a motion to withdraw from each
of these cases. See Anders, 386 U.S. at 744; Jeffery v. State, 903 S.W.2d 776, 779–
80 (Tex. App.—Dallas 1995, no pet.) (“If an attorney believes the appeal is
frivolous, he must withdraw from representing the appellant. To withdraw from
representation, the appointed attorney must file a motion to withdraw accompanied
by a brief showing the appellate court that the appeal is frivolous.”). We grant
counsel’s motion to withdraw. Within five days of the date of this Court’s opinion,
counsel is ordered to send a copy of the opinion and judgments to appellant and to
advise appellant of his right to pursue a petition for review. See TEX. R. APP. P. 48.4.
CONCLUSION
We affirm the trial court’s judgments.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
DO NOT PUBLISH
Tex. R. App. P. 47
191321F.U05
–5–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DONNIE RAY JONES, Appellant On Appeal from the 292nd Judicial
District Court, Dallas County, Texas
No. 05-19-01321-CR V. Trial Court Cause No. F17-71725-V.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Schenck. Justices Smith and Garcia
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 8th day of March, 2021.
–6–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DONNIE RAY JONES, Appellant On Appeal from the 292nd Judicial
District Court, Dallas County, Texas
No. 05-19-01563-CR V. Trial Court Cause No. F17-57638-V.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Schenck. Justices Smith and Garcia
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 8th day of March, 2021.
–7–