Deylan Walker v. State ( 2019 )


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  •              In the
    Court of Appeals
    Second Appellate District of Texas
    at Fort Worth
    ___________________________
    No. 02-18-00064-CR
    ___________________________
    DEYLAN WALKER, Appellant
    V.
    THE STATE OF TEXAS
    On Appeal from County Criminal Court No. 5
    Denton County, Texas
    Trial Court No. CR-2015-04662-E
    Before Bassel, J.; Sudderth, C.J.; and Womack, J.
    Per Curiam Memorandum Opinion
    MEMORANDUM OPINION
    A jury found Appellant Deylan Walker guilty of driving while intoxicated. See
    Tex. Penal Code Ann. § 49.04(a). At punishment, Walker pleaded “true” to the
    enhancement—that he had previously been convicted for driving while intoxicated—
    which raised his offense from a Class B misdemeanor to a Class A misdemeanor. See
    
    id. §§ 49.04(b),
    49.09(a). After hearing mitigating character evidence, the jury assessed
    Walker’s punishment at 365 days in jail and a $2,500 fine and recommended that his
    sentence be suspended and that he be placed on community supervision. See 
    id. § 12.21
    (stating that allowable punishment for Class A misdemeanor includes a fine
    not to exceed $4,000, confinement in jail for a term not to exceed one year, or both
    such fine and confinement). In accordance with the jury’s recommendation, the trial
    court sentenced Walker to 365 days in jail, suspended imposition of the sentence but
    not the fine, and placed him on community supervision for twenty-four months. See
    Tex. Code Crim. Proc. Ann. art. 42A.053(f) (stating that maximum period of
    community supervision in a misdemeanor case is two years).
    Walker’s court-appointed appellate counsel has 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
    ,
    744, 
    87 S. Ct. 1396
    , 1400 (1967). In compliance with Kelly v. State, counsel notified
    Walker of the motion to withdraw, provided him a copy of the brief, informed him of
    2
    his right to file a pro se response, informed him of his pro se right to seek
    discretionary review should this court hold that the appeal is frivolous, and took
    concrete measures to facilitate Walker’s review of the appellate record.1 
    436 S.W.3d 313
    , 319 (Tex. Crim. App. 2014). Walker had the opportunity to file a pro se
    1
    On August 6, 2018, Walker’s appellate counsel sent him a letter informing him
    that she had filed an Anders brief and a motion to withdraw. In her letter, she stated
    that she had sent him a copy of the entire record and that, in case the items were
    damaged in the mail, she had enclosed a motion that Walker could sign to request a
    copy of the record from this court. Because it appeared that Walker did not pick up
    the August 6 letter and documents that were sent to him via certified mail, Walker’s
    appellate counsel wrote to Walker again on September 10, 2018.
    On September 11, 2018, we sent a letter to Walker informing him that his
    appellate counsel had filed an Anders brief and a motion to withdraw and that he had
    fourteen days to send in the motion for pro se access to the appellate record that his
    attorney had provided to him. On September 25, 2018, Walker sent a letter to this
    court claiming that he had not received all of the documents from his appellate
    counsel that she claimed she had sent him.
    Accordingly, on October 1, 2018, this court sent a letter to Walker stating that
    his appellate counsel had sent him the required documents on two separate occasions,
    and we enclosed a copy of his appellate counsel’s motion to withdraw, Anders brief,
    and her August 6 letter, which included a form to request a copy of the record. In our
    letter, we stated that Walker had the right to review the record and that if he wished
    “to examine the record and file a pro se response, [he should] notify the Second Court
    of Appeals within fourteen (14) days of the date of this letter.” On October 15,
    2018, Walker responded to our October 1 letter, acknowledging that he had received
    this court’s letter of October 1 and its enclosures, but he did not enclose the form to
    request the record, nor did he state in his letter that he wanted to review the record.
    Moreover, although Walker is not incarcerated and has a Dallas address on file, he has
    not attempted to view the record in person.
    3
    response to the Anders brief but did not do so.2 The State waived its right to file a
    brief in response to the Anders brief.
    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, and we find nothing in
    the record that arguably might support the appeal. See Bledsoe v. State, 
    178 S.W.3d 824
    ,
    2
    On March 22, 2019, the same day that this case was submitted and five
    months after the deadline for Walker’s pro se response, Walker filed a pro se letter
    raising claims of ineffective assistance of his trial counsel and requesting the
    appointment of new appellate counsel. Because direct appeal is inadequate for raising
    claims of an ineffective-assistance-of-counsel claim when, as here, the record does not
    show counsel’s reasons for any alleged deficient performance and because Walker is
    not entitled to the appointment of appellate counsel of his own choosing, Walker’s
    pro se letter does not dissuade us from our conclusion that this appeal is wholly
    frivolous and without merit. See Menefield v. State, 
    363 S.W.3d 591
    , 592–93 (Tex. Crim.
    App. 2012) (stating that direct appeal is usually inadequate for raising an ineffective-
    assistance-of-counsel claim); Imade v. State, No. 14-09-00886-CR, 
    2011 WL 3064759
    , at
    *1 n.2 (Tex. App.—Houston [14th Dist.] July 26, 2011, pet. dism’d, untimely filed)
    (mem. op.) (not designated for publication) (stating that appellant “may not
    manipulate the right to counsel so as to obstruct the orderly procedure in the court or
    interfere with the fair administration of justice and must, in some circumstances, yield
    to the general interest of prompt and efficient justice” and that appellant is not
    entitled to his personal choice of appointed counsel).
    4
    827–28 (Tex. Crim. App. 2005). Accordingly, we grant counsel’s motion to withdraw
    and affirm the trial court’s judgment.
    Per Curiam
    Do Not Publish
    Tex. R. App. P. 47.2(b)
    Delivered: March 28, 2019
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