Derrick Barry v. the State of Texas
Date Filed2023-12-19
Docket07-23-00097-CR
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-23-00097-CR
DERRICK BARRY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 140th District Court
Lubbock County, Texas
Trial Court No. 2021-423165; Honorable Douglas H. Freitag, Presiding
December 19, 2023
MEMORANDUM OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
Pending before this Court is a motion to withdraw supported by a brief filed
pursuant to Anders v. California.1 Pursuant to an open plea of guilty, Appellant, Derrick
Barry, was convicted of three counts of sexual offenses as follows:
Aggravated sexual assault (Count I) TEX. PENAL CODE ANN. Ā§ 22.021(a)(2)(B) Fifty years
Indecency with child by contact (Count II) TEX. PENAL CODE ANN. Ā§ 22.11(a)(1) Twenty years
Indecency with child by exposure (Count III) TEX. PENAL CODE ANN. Ā§ 22.11(a)(2)(A) Ten years
1 Anders v. California, 386 U.S. 738,87 S. Ct. 1396
,18 L. Ed. 2d 493
(1967).
The trial court ordered the sentences in Counts I and II to run concurrently but ordered
the sentence in Count III to run consecutively to the concurrent sentences. We affirm and
grant counselās motion to withdraw.
In support of his motion to withdraw, counsel certifies he has conducted a
conscientious examination of the record, and in his opinion, it reflects no potentially
plausible basis for reversal of Appellantās conviction. Anders v. California, 386 U.S. 738, 744ā45,87 S. Ct. 1396
,18 L. Ed. 2d 493
(1967); In re Schulman,252 S.W.3d 403, 406
(Tex. Crim. App. 2008). Counsel candidly discusses why, under the controlling authorities, the record supports that conclusion. See High v. State,573 S.W.2d 807, 813
(Tex. Crim. App. 1978). Counsel has demonstrated he has complied with the requirements of Anders and In re Schulman by (1) providing a copy of the brief to Appellant, (2) notifying him of the right to file a pro se response if he desired to do so, and (3) informing him of the right to file a pro se petition for discretionary review. In re Schulman,252 S.W.3d 403, 408
(Tex. Crim. App. 2008).2 By letter, this Court granted Appellant an opportunity to exercise his right to file a response to counselās brief, should he be so inclined.Id.
at 409 n.23. Appellant filed a response by which he complains of
the severity of his punishment which he contends was based on emotion and not the
evidence presented. The State notified this Court it would not file a response unless
Appellant presented any meritorious issues.
2 Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary
review upon execution of the Trial Courtās Certification of Defendantās Right of Appeal, counsel must comply
with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days
after this opinion is handed down, send Appellant a copy of the opinion and judgment together with
notification of his right to file a pro se petition for discretionary review. Id.at 408 n.22, 411. The duty to send the client a copy of this Courtās decision is an informational one, not a representational one. It is ministerial in nature, does not involve legal advice, and exists after the court of appeals has granted counselās motion to withdraw.Id.
at 411 n.33.
2
By the Anders brief, counsel advances cruel and unusual punishment as a
potential error given Appellantās sentences but after reviewing the record, he concedes
they are within the statutory range, not grossly disproportionate to the offenses, and do
not present reversible error. Woods v. State, 488 S.W.3d 809, 811(Tex. App.āAmarillo 2016, pet. refād); Winchester v. State,246 S.W.3d 386, 389
(Tex. App.āAmarillo 2008, pet. refād).3 Additionally, a trial court has broad discretion to cumulate sentences. TEX. CODE CRIM. PROC. ANN. art. 42.08(a); Byrd v. State,499 S.W.3d 443, 446
(Tex. Crim.
App. 2016). Counsel also reviewed various objections which, even if erroneous, would
not be harmful in light of the entire record.
When we have an Anders brief by counsel and a pro se response by an appellant,
we have two choices. We may determine the appeal is wholly frivolous and issue an
opinion explaining we have reviewed the record and find no reversible error; Bledsoe v.
State, 178 S.W.3d 824, 826ā27 (Tex. Crim. App. 2005) (citing Anders,386 U.S. at 744
), or we 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 issues.Id.
(citing Stafford v. State,813 S.W.2d 503, 510
(Tex. Crim. App. 1991)).
We too have independently examined the record to determine whether there are
any non-frivolous issues which might support this appeal. See Penson v. Ohio, 488 U.S.
75, 80,109 S. Ct. 346
,102 L. Ed. 2d 300
(1988); In re Schulman,252 S.W.3d at 409
; Stafford,813 S.W.2d at 511
. We have found no such issues. See Gainous v. State, 436
3 Although the judgment for Count III does not include a special finding on cumulation, the summary
portion of that judgment ordering the sentence to run consecutively to the concurrent sentences in Counts
I and II is valid. A cumulation order is deemed sufficient when the same court on the same day pronounces
the cumulation order. See Ex parte Lewis, 414 S.W.2d 682, 683(Tex. Crim. App. 1967). See also Turner v. State,733 S.W.2d 218, 221
(Tex. Crim. App. 1987) (quoting Bullard v. State, 40 Tex. Crim. App. 348, 50
S.W.348 (1899) (holding cumulation order is valid if convictions occur at the same term in which appellant
is tried)). In the underlying punishment phase, the trial court pronounced the sentence in Count III would
run consecutive to concurrent sentences in Counts I and II at the same time.
3
S.W.2d 137, 138 (Tex. Crim. App. 1969). After reviewing the record, counselās brief, and
Appellantās pro se response, we agree with counsel there is no plausible basis for reversal
of Appellantās conviction. See Bledsoe, 178 S.W.3d at 826ā27.
CONCLUSION
The trial courtās judgment is affirmed and counselās motion to withdraw is granted.
Alex Yarbrough
Justice
Do not publish.
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