Danny Berymon v. The State of Texas Appeal from 24th District Court of De Witt County (memorandum opinion)

Annotate this Case

Download PDF

NUMBER 13-21-00163-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG DANNY BERYMON, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 24th District Court of DeWitt County, Texas. MEMORANDUM OPINION Before Chief Justice Contreras and Justices Longoria and Tijerina Memorandum Opinion by Justice Longoria Appellant Danny Berymon was indicted for the offense of aggravated assault with a deadly weapon. See TEX. PENAL CODE ANN. § 22.02. Appellant entered a plea of nolo contendere, pursuant to a plea bargain, to the indicted offense. The trial court deferred a finding of guilt and placed appellant on deferred adjudication community supervision for a term of five years. Appellee, the State of Texas, filed a motion to adjudicate guilt and revoke appellant’s deferred adjudication community supervision. Appellant contested all four allegations raised in the State’s motion. After a hearing, the trial court found that appellant violated the terms of his deferred adjudication community supervision, adjudicated appellant guilty of aggravated assault with a deadly weapon, and sentenced appellant to twenty years’ confinement in the Correctional Institutions Division of the Texas Department of Criminal Justice. Appellant’s court-appointed counsel has filed an Anders brief stating that there are no arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm the trial court’s judgment. I. ANDERS BRIEF Pursuant to Anders v. California, appellant’s court-appointed appellate counsel filed a brief and an amended motion to withdraw with this Court, stating that his review of the record yielded no grounds of reversible error upon which an appeal could be predicated. See id. Counsel’s brief meets the requirements of Anders as it presents a professional evaluation demonstrating why there are no arguable grounds to advance on appeal. See In re Schulman, 252 S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“In Texas, an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities.” (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex. App.—Corpus Christi–Edinburg 2003, no pet.))); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014), 2 appellant’s counsel carefully discussed why, under controlling authority, there is no reversible error in the trial court’s judgment. Appellant’s counsel also informed this Court in writing that he: (1) notified appellant that counsel has filed an Anders brief and a motion to withdraw; (2) provided appellant with copies of both pleadings; (3) informed appellant of his rights to file a pro se response, to review the record prior to filing that response, and to seek discretionary review if we conclude that the appeal is frivolous; and (4) provided appellant with a form motion for pro se access to the appellate record that only requires appellant’s signature and date with instructions to file the motion within ten days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20; see also In re Schulman, 252 S.W.3d at 408–09. In this case, appellant filed his original pro se response on January 11, 2022; a supplemental pro se response on January 14, 2022; and a second supplemental pro se response on February 4, 2022. On March 7, 2022, appellant filed a motion seeking pro se access to the appellate record, which was granted on March 10, 2022. Appellant received the record on April 4, 2022, and subsequently twice-requested an extension of time to file his amended pro se response, both of which were granted. On July 5, 2022, appellant filed his amended pro se response. 1 When appellate counsel files an Anders brief and the appellant independently files a pro se response, the court of appeals has On July 6, 2022, this Court sent a letter informing appellant that his amended pro se response was marked ‘received,’ but was untimely, and provided him ten days to submit a motion for leave to file said response. In addition, appellant was informed his amended pro se response was not compliant with Texas Rules of Appellate Procedure 38.1 and 9.5. See TEX. R. APP. P. 38.1, 9.5. Though the time for appellant to submit a motion for leave and an amended brief compliant with rule 38.1 and 9.5 has passed without appellant having filed said items, we have nonetheless marked appellant’s amended pro se response as ‘filed’ on July 5, 2022. As such, we have considered appellant’s amended pro se response in fashioning this memorandum opinion. 1 3 two choices: [i]t may determine that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error. Or, it may determine that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues. Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (internal citations omitted). We are “not required to review the merits of each claim raised in an Anders brief or a pro se response.” Id. at 827. Rather, we must merely determine if there are any arguable grounds for appeal. Id. If we determine there are such arguable grounds, we must remand for appointment of new counsel. Id. Reviewing the merits raised in a pro se response would deprive an appellant of the meaningful assistance of counsel. Id. II. INDEPENDENT REVIEW Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). We have reviewed the record, counsel’s brief and appellant’s pro se responses, and we have found nothing that would arguably support an appeal. See Bledsoe, 178 S.W.3d at 827–28 (“Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 511. III. MOTION TO WITHDRAW In accordance with Anders, appellant’s counsel has asked this Court for permission to withdraw as counsel. See Anders, 386 U.S. at 744; see also In re 4 Schulman, 252 S.W.3d at 408 n.17. We grant counsel’s amended motion to withdraw. Within five days from the date of this Court’s opinion, counsel is ordered to send a copy of this opinion and this Court’s judgment to appellant and to advise him of his right to file a petition for discretionary review. 2 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006). IV. CONCLUSION We affirm the trial court’s judgment. NORA L. LONGORIA Justice Do not publish. TEX. R. APP. P. 47.2 (b). Delivered and filed on the 11th day of August, 2022. 2 No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the Clerk of the Texas Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4. 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.