Henry Marcus Swinney, Appellant v. The State of Texas, Appellee (2016)

MEMORANDUM OPINION

Henry Marcus Swinney appeals his felony conviction for assault family violence.  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, who lived with his parents and his wife, came home after work on August 22, 2013.  According to the victim, Appellant's wife, Appellant was angry and appeared to be intoxicated.¹  They engaged in an argument, and according to the victim, he grabbed her by the hair, forced her onto the bed, pinned her, and struck her several times with both an open hand and a closed fist.  Appellant then told her to make him dinner.  Worried about what would happen to her if she did not comply, the victim made dinner for Appellant and his parents.  She brought Appellant his food, but he was passed out.

The victim took the opportunity to leave the residence and seek help from her sister.  Once the victim arrived at her sister's home, the victim's sister called the police.  The victim and her sister met an officer, who made a report and took photos of the victim's injury.  The photos depicted a large bump on the victim's forehead.  The victim and her sister met with a detective a few days later.  The detective observed that the victim suffered from additional bruising not depicted in the earlier photos, but did not take new photos showing the progression of her injuries.  Based on his investigation, the detective obtained an arrest warrant.  Shortly thereafter, Appellant was at the police station for an unrelated traffic accident.  The detective informed Appellant that he was under arrest, and interviewed him concerning the assault against the victim.  Appellant claimed that he did not assault her, and that his prior arrests and convictions for assaulting her were actually self-defense.

Appellant was indicted for assault family violence.²  The indictment also alleged that Appellant had a prior conviction for assault family violence, enhancing the punishment range to that of a third degree felony.³  The jury found Appellant guilty of the charged offense, and also found that the enhancement was true.  After a punishment hearing, the jury sentenced Appellant to eight years of imprisonment.  This appeal followed.

Analysis Pursuant To Anders v. California

Appellant's counsel filed a brief in compliance with Anders v. California and Gainous v. State.  Appellant's counsel states that he has diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error and that there is no error upon which an appeal can be predicated.  He further relates that he is well acquainted with the facts in this case.  In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807 (Tex.Crim.App. [Panel Op.] 1978), Appellant's brief presents a chronological summation of the procedural history of the case and further states that Appellant's counsel is unable to raise any arguable issues for appeal.  See Anders, 386 U.S. at 745, 87 S.Ct. at 1400;  Gainous, 436 S.W.2d at 138;  see also Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 350, 102 L.Ed.2d 300 (1988).

Thereafter, Appellant filed a pro se brief in which he raised the following issues:  ineffective assistance of his retained counsel in several respects, that the detective was unqualified to speak on medical evidence and that he testified falsely under oath, the trial court improperly allowed opinion testimony as to his propensity for violence, and improper jury argument by the State.  We have considered counsel's brief, Appellant's pro se brief, and have also conducted our own independent review of the appellate record.  We found no reversible error.  See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex.Crim.App.2005).

Conclusion

As required by Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App.1991), Appellant's counsel has moved for leave to withdraw.  See also In re Schulman, 252 S.W.3d 403, 407 (Tex.Crim.App.2008) (orig.proceeding).  We are in agreement with Appellant's counsel that the appeal is wholly frivolous.  Accordingly, his motion for leave to withdraw is hereby granted, and the trial court's judgment is affirmed.  See Tex.R.App. P. 43.2.

As a result of our disposition of this case, 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 petition for discretionary review pro se.  Any petition for discretionary review must be filed within thirty days from the date of this court's judgment or the date the last timely motion for rehearing was 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 discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4.  See In re Schulman, 252 S.W.3d at 408 n.22.

FOOTNOTES

1.   Appellant had been placed on community supervision at the time of this incident for a prior assault against the victim, and was prohibited from drinking alcohol under the conditions of his supervision.

2.   See Tex. Penal Code Ann. § 22.01(a)(1) (West Supp.2015)

3.   See id. § 22.01(b)(2)(A).

PER CURIAM