Opinion issued April 14, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00158-CR
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DJ CHRISTOPHER LOWE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from 400th District Court
Fort Bend County, Texas
Trial Court Cause No. 10-DCR-055397
MEMORANDUM OPINION
Appellant, DJ Christopher Lowe, pleaded guilty to the first-degree felony
offense of aggravated sexual assault of a child under fourteen, without an agreed
recommendation from the State as to punishment. See TEX. PENAL CODE ANN.
§§22.021(a)(1)(B)(iii), (a)(2)(B), (e) (West Supp. 2015). The trial court withheld a
finding of guilt and ordered a pre-sentence investigation (“PSI”) report. Following
a PSI report and hearing, the trial court found appellant guilty as charged, and
assessed his punishment at seventy-five years’ confinement on February 7, 2014.1
This sentence is within the applicable sentencing range. See id. § 12.32(a) (West
Supp. 2015). The trial court certified that this was not a plea-bargain case, and that
appellant had the right of appeal as to the sentence. See TEX. R. APP. P. 25.2(a)(2).
Appellant prematurely filed a notice of appeal, which is deemed timely filed on
February 7, 2014, the date the appealable judgment was signed. See TEX. R. APP. P.
27.1(b).
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 he has
thoroughly reviewed the record and that he is unable to advance any grounds of error
1
This sentence was set to run concurrently with appellant’s 511-month federal
sentence for various charges of possession of child pornography to which he pleaded
guilty to before being sentenced in state court.
2
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 he has delivered a copy of the motion
to withdraw and Anders brief to appellant and informed him of his right to file a
response and access to the record. See In re Schulman, 252 S.W.3d 403, 408 (Tex.
Crim. App. 2008). Furthermore, a copy of the record has been sent to appellant for
review. See Kelly v. State, 436 S.W.3d 313, 322 (Tex. Crim. App. 2014). Appellant
has not filed any 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, 826–28 (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.
CONCLUSION
Accordingly, we affirm the judgment of the trial court and grant counsel’s
motion to withdraw. See TEX. R. APP. P. 43.2(a).2 Attorney Mark W. Racer 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 Chief Justice Radack and Justices Keyes and Higley.
Do not publish. TEX. R. APP. P. 47.2(b).
2
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, 178 S.W.3d at 826–27.
4