Nicholas Paul Deason, Appellant v. The State of Texas, State (2016)

MEMORANDUM OPINION 1

Appellant Nicholas Paul Deason pleaded guilty to forgery of a financial instrument against an elderly person, a third-degree felony.  See Tex. Penal Code § 32.21(b), (d), (e–1) (West 2011).  The trial court accepted his plea and sentenced him to five years' confinement.  See id. § 12.34(a) (West 2011) (setting out punishment range for third-degree felonies).  This appeal followed.

On November 20, 2015, Deason's court-appointed appellate counsel 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. California by presenting a professional evaluation of the record demonstrating why there are no arguable grounds for relief.  See 386 U.S. 738, 87 S.Ct. 1396 (1967).  In compliance with Kelly v. State, counsel notified Deason 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 Deason's review of the appellate record.  See 436 S.W.3d 313, 319 (Tex.Crim.App.2014).

This court afforded Deason the opportunity to file a response on his own behalf.  On December 21, 2015, we sent a letter to Deason stating that he had fourteen days to inform us whether he desired to file a pro se response to the Anders brief filed by his court-appointed counsel.  On February 25, 2016—well after the fourteen-day deadline had passed—we received a letter from Deason in which he briefly stated, “I Nicholas Deason am getting a lawyer to represent my case.”  Deason said nothing in that letter about filing a pro se response to the Anders brief filed by his court-appointed counsel.  On March 3, 2016, we sent a letter to Deason stating that if within fourteen days he did not inform us of the name of the firm or attorney that he had hired and also file a motion to extend the time for filing a brief, the appeal would proceed without his pro se brief responding to the Anders brief filed by his court-appointed counsel.  On March 18, 2016, we received a letter from Deason requesting an extension on hiring an attorney;  the letter did not provide the name of the firm or attorney that he was seeking to hire, nor did it include a motion to extend the time for filing a brief.

On March 29, 2016, we received another letter from Deason stating that he is “seeking Clay Riddle as my attorney to hire.”  This letter did not seek an extension of time to file a pro se brief, and to date, no new attorney has filed a notice of appearance on Deason's behalf.  Because Deason failed to comply with our December 21, 2015 and March 3, 2016 letters, and because Deason has failed to file a pro se brief or obtain counsel during the five months since his appointed counsel filed the motion to withdraw and the Anders brief, we consider this appeal without a response to the Anders brief filed by Deason's court-appointed counsel.²  See generally Anders, 386 U.S. at 744, 87 S.Ct. at 1400 (requiring court to allow appellant to file brief raising points but not requiring court to wait for appellant to file brief before setting case for submission);  Hibler v. State, No. 02–14–00016–CR, 2015 WL 1407744, at *1 (Tex.App.—Fort Worth Mar. 26, 2015, pet. ref'd) (mem. op., not designated for publication) (deciding case without pro se appellant brief where appellant was given the opportunity to file a brief but 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);  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.

FOOTNOTES

1.   See Tex.R.App. P. 47.4.

2.   The State also did not file a response to the Anders brief filed by Deason's court-appointed counsel.

SUE WALKER, JUSTICE