In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-16-00362-CR
____________________
JOHN DAVID PAYNE, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 15-11-12010-CR
________________________________________________________________________
MEMORANDUM OPINION
In this appeal, John David Payne’s appellate counsel filed a brief in which he
contends that no arguable grounds can be advanced to support a decision reversing
Payne’s conviction for online solicitation of a minor. See Tex. Penal Code Ann. §
33.021(c) (West Supp. 2016).1 Although usually online solicitation of a minor is
1
We cite to the current version of the Penal Code, as the amendments made
to the cited statutes do not affect this appeal.
1
punishable as a third-degree felony, because Payne had two previous felony
convictions, he was subject to a potential sentence of life in prison. See id. § 12.42(d)
(West Supp. 2016) (providing enhanced penalties for repeat and habitual felony
offenders), § 33.021(f) (West Supp. 2016) (providing that a conviction for online
solicitation of a minor fourteen or older is a third-degree felony). The jury found that
Payne should serve a life sentence. Based on our review of the record, we agree with
Payne’s counsel that no arguable issues exist to support his appeal. See Anders v.
California, 386 U.S. 738 (1967).
In 2016, a jury found Payne guilty of online solicitation of a minor. Following
a punishment hearing, and based on its findings that Payne committed two prior
felonies as charged in the indictment, the jury found that Payne should serve a life
sentence. Subsequently, the trial court sentenced Payne to serve a sentence of life in
prison and Payne appealed.
In his appeal, Payne’s counsel filed a brief presenting counsel’s professional
evaluation of the record. In the brief, Payne’s counsel concludes that any appeal
would be frivolous. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807
(Tex. Crim. App. 1978). After receiving the Anders brief, we granted an extension
of time to allow Payne an opportunity to file a pro se response. However, no response
was filed.
2
After reviewing the appellate record and the Anders brief filed by Payne’s
counsel, we agree with counsel’s conclusion that an appeal on the current record
would be frivolous. Therefore, we conclude it is not necessary to order that new
counsel be appointed to re-brief the appeal. Cf. Stafford v. State, 813 S.W.2d 503,
511 (Tex. Crim. App. 1991) (requiring the court of appeals to appoint other counsel
only if it determines that there were arguable grounds for the appeal). Given our
conclusion that no arguable error exists to support Payne’s appeal, we affirm the trial
court’s judgment.2
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on May 25, 2017
Opinion Delivered August 2, 2017
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
2
Payne may challenge our decision in the case by filing a petition for
discretionary review. See Tex. R. App. P. 68.
3