Frank Shanley Dougherty v. The State of Texas Appeal from 7th District Court of Smith County (memorandum opinion per curiam)

 Annotate this Case
Download PDF
NO. 12-19-00329-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS FRANK SHANLEY DOUGHERTY, APPELLANT § APPEAL FROM THE 7TH V. § JUDICIAL DISTRICT COURT THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS MEMORANDUM OPINION PER CURIAM Frank Shanley Dougherty appeals his conviction for aggravated assault with a deadly weapon. 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). Thereafter, Appellant filed a pro se brief. We affirm. BACKGROUND In December 2018, pursuant to a plea agreement, Appellant pleaded “guilty” to the charged offense of aggravated assault with a deadly weapon. Appellant also signed a written stipulation of evidence establishing all the elements of the offense, a waiver of his rights to a jury trial, an agreement to stipulate testimony and waive his right of cross-examination and confrontation of witnesses against him, and an acknowledgement of admonishments. In accordance with the agreement, the trial court placed Appellant on deferred adjudication community supervision for four years. In June 2019, the State filed a motion to adjudicate Appellant’s guilt, alleging that he failed to abide by the terms of his community supervision in that he possessed and consumed methamphetamines, and that he failed to report and submit to a random urinalysis test. Appellant pleaded “true” to the allegations in the State’s motion. At the subsequent hearing, the trial court adjudicated Appellant’s guilt, found him “guilty” of the charged offense, revoked his community supervision, and sentenced him 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 she 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. She further relates that she 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. 1 Appellant thereafter filed a letter that we construe as a pro se brief and raised the following issues: (1) ineffective assistance of counsel in that his trial counsel allegedly failed to inform the trial court that this offense was his first felony violation and that he had completed most of his community supervision requirements; (2) he is not guilty of the underlying offense and that his original charge was “very questionable at the least;” and (3) other mitigating factors like his activity in church warranted a lesser punishment such as remaining on community supervision. When faced with an Anders brief and pro se response by an appellant, an appellate court can either (1) determine that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error or (2) 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). As is our duty, we have conducted a full examination of the record to determine whether the appeal of this case is wholly frivolous, considered Appellant’s issues, and were unable to find reversible error. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Bledsoe, 178 S.W.3d at 826-27. In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief, notified Appellant of her motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took concrete measures to facilitate Appellant’s review of the appellate record. See Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). 1 2 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 carried the motion for consideration with the merits. Having done so and having found no reversible error, Appellant’s counsel’s motion for leave to withdraw is hereby granted and the appeal of the trial court’s judgment is affirmed. 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 either this opinion or the date that the last timely motion for rehearing is 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. Opinion delivered October 21, 2020. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. (DO NOT PUBLISH) 3 COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT OCTOBER 21, 2020 NO. 12-19-00329-CR FRANK SHANLEY DOUGHERTY, Appellant V. THE STATE OF TEXAS, Appellee Appeal from the 7th District Court of Smith County, Texas (Tr.Ct.No. 007-1181-18) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.

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.