Torrey Gray v. The State of Texas Appeal from 204th Judicial District Court of Dallas County (memorandum opinion)

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AFFIRMED and Opinion Filed July 19, 2021 In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00117-CR No. 05-20-00118-CR No. 05-20-00119-CR No. 05-20-00120-CR TORREY LADARIUS GRAY, Appellant1 V. THE STATE OF TEXAS, Appellee On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F19-54568-Q, F19-75964-Q, F19-76047-Q, and F19-76008-Q MEMORANDUM OPINION Before Justices Myers, Osborne, and Carlyle Opinion by Justice Osborne Appellant Torrey Ladarius Gray pleaded guilty in an open plea to aggravated robbery in cause number F19-54568-Q and aggravated assault against a public 1 In appeal number 05-20-00117-CR, the notice of appeal, docketing statement, and judgment of conviction give appellant’s name as “Torrey Gray.” In the other three appeals, the notices of appeal give appellant’s name as “Torrey L. Gray,” the docketing statements give appellant’s name as “Torrey Grey,” and the judgments of conviction in the trial court give appellant’s name as “Torrey Ladarius Gray.” In all four cases, the motion to withdraw gives appellant’s name as “Torrey Ladarius Gray” and the Anders brief gives appellant’s name as “Torrey Gray.” The name we have given appellant in the above case style, “Torrey Ladarius Gray,” reflects the party’s name in the motion to withdraw and three of the trial court’s judgments of conviction; however, the name we will give appellant in the case style to our judgment and mandate in 05-20-00117-CR will reflect the name given in the trial court’s judgment in trial court cause number F19-54568-Q, “Torrey Gray.” servant in cause numbers F19-75964-Q, F19-76047-Q, and F19-76008-Q. The cases were tried together. At the conclusion of a January 23, 2020 hearing at which appellant and five other witnesses testified, the trial court accepted appellant’s pleas of guilty, found appellant guilty, made an affirmative finding that a deadly weapon (a firearm) was used in each offense, and sentenced appellant to twenty-five years’ confinement in prison in each case with the sentences running concurrently.2 The trial court entered judgments in each cause accordingly. Appellant timely filed a notice of appeal and pauper’s oath for the appointment of counsel in each case. On January 24, 2020, the trial court appointed appellate counsel to represent appellant on appeal. On May 22, 2020, appellant’s appointed appellate counsel filed a motion to withdraw as counsel on appeal in each appeal pursuant to Anders v. California, 386 U.S. 738, 744–45 (1967), stating that after a “careful evaluation of the clerk’s record and the reporter’s record” and applicable law, he has concluded “there are no arguable grounds to be raised to support an appeal of this cause and the appeal is frivolous.” Appointed appellate counsel also filed a separate brief in each appeal in which he concluded, “After thorough examination of the clerk’s record and 2 The cases were also tried together with trial court cause number F19-76009-Q wherein appellant also pleaded guilty in an open plea to aggravated assault against a public servant. At the January 23, 2020 hearing, after accepting appellant’s plea of guilty, finding appellant guilty, and making an affirmative finding that a deadly weapon (a firearm) was used in that offense, the trial court also sentenced to appellant to twenty-five years’ confinement for that offense, with the sentence running concurrently with his sentences in the other four cases. Appeal cause number 05-20-00121-CR concerns appellant’s appeal of the judgment of conviction in trial court cause number F19-76009-Q. Appointed appellate counsel also filed his motion to withdraw and Anders brief in this other appeal, which we address by separate opinion. –2– reporter’s record, counsel can find no point of error that can be supported by the record,” stating he had “discussed the evidence and the documents in the record, citing references to the record.” In his motion to withdraw, appellant’s appointed counsel also stated he had (1) provided appellant with a copy of his motion and the brief in support of the motion, (2) informed appellant of his right to file a brief on his own behalf, and (3) provided appellant with a copy of the clerk’s and reporter’s records. In a letter dated May 28, 2020, we attached a copy of the motion to withdraw and the brief and advised appellant of his right to file a pro se response by July 6, 2020. We advised that the failure to file a pro se response by that date would result in the cases being submitted on the brief filed by appointed appellant counsel. To date, this Court has not received a pro se response from appellant. When we receive an Anders brief from a court-appointed appellate attorney asserting no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (en banc). If we conclude, after conducting an independent review, that appointed “appellate counsel has exercised professional diligence in assaying the record for error” and agree that the appeal is frivolous, we should grant counsel’s motion to withdraw and affirm the trial court’s judgment. Owens v. State, No. 05-19-00371-CR, 2020 WL 5228149, at *2 (Tex. App.—Dallas Sept. 2, 2020, no pet.) (mem. op.) (not –3– designated for publication) (citing Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim. App. 2006), In re Schulman, 252 S.W.3d 403, 409 (Tex. Crim. App. 2008), and Crowe v. State, 595 S.W.3d 317, 320 (Tex. App.—Dallas 2020, no pet.)). If, however, we conclude either that appointed appellate counsel has not adequately discharged the constitutional duty to review the record for any arguable error or that the appeal is not wholly frivolous, we may abate the appeal and return the cause to the trial court for the appointment of new appellate counsel. See id. (citing Meza, 206 S.W.3d at 689, and Crowe, 595 S.W.3d at 320). The brief before us meets the requirements of Anders. It presents a professional evaluation of the records showing why, in effect, there are no arguable grounds to advance in each of these appeals. See High v. State, 573 S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.] 1978). Appellant was advised of his right to file a pro se response, but he has not done so. See Kelly v. State, 436 S.W.3d 313, 319–21 (Tex. Crim. App. 2014). We have reviewed the records in each of these appeals and appointed counsel’s brief. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). We agree these four appeals are frivolous and without merit, and we find nothing in the records that might arguably support the appeals. Accordingly, with respect to these four appeals, we grant appointed appellate counsel’s motion to withdraw and affirm the trial court’s judgments. –4– 200117f.u05 /Leslie Osborne// LESLIE OSBORNE JUSTICE 200118f.u05 200119f.u05 200120f.u05 Do Not Publish TEX. R. APP. P. 47 –5– Court of Appeals Fifth District of Texas at Dallas JUDGMENT TORREY GRAY, Appellant No. 05-20-00117-CR On Appeal from the 204th Judicial District Court, Dallas County, Texas Trial Court Cause No. F19-54568-Q. Opinion delivered by Justice Osborne. Justices Myers and Carlyle participating. V. THE STATE OF TEXAS, Appellee Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 19th day of July, 2021. –6– Court of Appeals Fifth District of Texas at Dallas JUDGMENT TORREY LADARIUS GRAY, Appellant No. 05-20-00118-CR On Appeal from the 204th Judicial District Court, Dallas County, Texas Trial Court Cause No. F19-75964-Q. Opinion delivered by Justice Osborne. Justices Myers and Carlyle participating. V. THE STATE OF TEXAS, Appellee Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 19th day of July, 2021. –7– Court of Appeals Fifth District of Texas at Dallas JUDGMENT TORREY LADARIUS GRAY, Appellant No. 05-20-00119-CR On Appeal from the 204th Judicial District Court, Dallas County, Texas Trial Court Cause No. F19-76047-Q. Opinion delivered by Justice Osborne. Justices Myers and Carlyle participating. V. THE STATE OF TEXAS, Appellee Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 19th day of July, 2021. –8– Court of Appeals Fifth District of Texas at Dallas JUDGMENT TORREY LADARIUS GRAY, Appellant No. 05-20-00120-CR On Appeal from the 204th Judicial District Court, Dallas County, Texas Trial Court Cause No. F19-76008-Q. Opinion delivered by Justice Osborne. Justices Myers and Carlyle participating. V. THE STATE OF TEXAS, Appellee Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 19th day of July, 2021. –9–

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