Joseph Arsenault v. The State of Texas Appeal from 52nd District Court of Coryell County (memorandum opinion per curiam)
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Opinion issued December 20, 2018 In The Court of Appeals For The First District of Texas ———————————— NO. 01-17-00569-CR ——————————— JOSEPH ARSENAULT, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 52nd District Court Coryell County, Texas1 Trial Court Cause No. 15-23058 1 The Texas Supreme Court transferred this appeal from the Court of Appeals for the Tenth District of Texas to this Court pursuant to its docket equalization powers. See TEX. GOV’T CODE ANN. § 73.001 (West 2013); Misc. Docket No. 17-9066 (Tex. June 20, 2017). We are unaware of any conflict between the precedent of the Tenth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3. MEMORANDUM OPINION Appellant, Joseph Arsenault, was found guilty after a jury trial of the firstdegree felony offense of aggravated assault with a deadly weapon on a public servant—enhanced.2 After the trial court found the enhancement paragraph in the indictment regarding appellant’s prior conviction true, it assessed his punishment at seventy years’ confinement. This sentence is within the applicable sentencing range.3 The trial court certified that this was not a plea-bargain case and that appellant had the right of appeal. See TEX. R. APP. P. 25.2(a)(2). Appellant timely filed a notice of appeal and new counsel was appointed. Appellant’s appointed counsel has filed a motion to withdraw, along with an Anders brief stating that the record presents no reversible error and that, therefore, the appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). Counsel’s brief meets the Anders requirements by presenting a professional evaluation of the record and supplying this Court with references to the record and legal authority. See id. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates that she has thoroughly reviewed the record and that she is unable to advance any grounds of 2 See TEX. PENAL CODE ANN. §§ 22.01(a)(1), 22.02(a)(2), (b)(2)(B), (c) (West 2011). 3 See TEX. PENAL CODE ANN. §§ 12.32(a), 12.42(c)(1) (West 2011). 2 error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Appellant’s counsel has informed us that she has delivered a copy of the motion to withdraw and Anders brief to appellant and informed him of his right to file a pro se response. See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008). Furthermore, counsel has certified that she sent appellant the form motion for pro se access to the records for his response. See Kelly v. State, 436 S.W.3d 313, 322 (Tex. Crim. App. 2014). Appellant filed a pro se response to his counsel’s Anders brief. We have independently reviewed the entire record in this appeal, and we conclude that no reversible error exists in the record, that there are no arguable grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel— determines, after full examination of proceedings, whether appeal is wholly frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (reviewing court is not to address merits of each claim raised in Anders brief or pro se response after determining there are no arguable grounds for review); Mitchell, 193 S.W.3d at 155. An appellant may challenge a holding that there are no arguable grounds for appeal by filing a petition 3 for discretionary review in the Texas Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6. Accordingly, we affirm the judgment of the trial court and grant counsel’s motion to withdraw.4 See TEX. R. APP. P. 43.2(a). Attorney Teresa Dunsmore must immediately send the required notice and file a copy of that notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(c). We dismiss any other pending motions as moot. PER CURIAM Panel consists of Justices Keyes, Massengale, and Brown. Do not publish. TEX. R. APP. P. 47.2(b). 4 Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). 4
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