NUMBER 13-21-00163-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DANNY BERYMON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of DeWitt County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Tijerina
Memorandum Opinion by Justice Longoria
Appellant Danny Berymon was indicted for the offense of aggravated assault with
a deadly weapon. See TEX. PENAL CODE ANN. § 22.02. Appellant entered a plea of nolo
contendere, pursuant to a plea bargain, to the indicted offense. The trial court deferred a
finding of guilt and placed appellant on deferred adjudication community supervision for
a term of five years. Appellee, the State of Texas, filed a motion to adjudicate guilt and
revoke appellant’s deferred adjudication community supervision. Appellant contested all
four allegations raised in the State’s motion. After a hearing, the trial court found that
appellant violated the terms of his deferred adjudication community supervision,
adjudicated appellant guilty of aggravated assault with a deadly weapon, and sentenced
appellant to twenty years’ confinement in the Correctional Institutions Division of the
Texas Department of Criminal Justice. Appellant’s court-appointed counsel has filed an
Anders brief stating that there are no arguable grounds for appeal. See Anders v.
California, 386 U.S. 738, 744 (1967). We affirm the trial court’s judgment.
I. ANDERS BRIEF
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
filed a brief and an amended motion to withdraw with this Court, stating that his review of
the record yielded no grounds of reversible error upon which an appeal could be
predicated. See id. Counsel’s brief meets the requirements of Anders as it presents a
professional evaluation demonstrating why there are no arguable grounds to advance on
appeal. See In re Schulman, 252 S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) (orig.
proceeding) (“In Texas, an Anders brief need not specifically advance ‘arguable’ points
of error if counsel finds none, but it must provide record references to the facts and
procedural history and set out pertinent legal authorities.” (citing Hawkins v. State, 112
S.W.3d 340, 343–44 (Tex. App.—Corpus Christi–Edinburg 2003, no pet.))); Stafford v.
State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014),
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appellant’s counsel carefully discussed why, under controlling authority, there is no
reversible error in the trial court’s judgment. Appellant’s counsel also informed this Court
in writing that he: (1) notified appellant that counsel has filed an Anders brief and a motion
to withdraw; (2) provided appellant with copies of both pleadings; (3) informed appellant
of his rights to file a pro se response, to review the record prior to filing that response,
and to seek discretionary review if we conclude that the appeal is frivolous; and
(4) provided appellant with a form motion for pro se access to the appellate record that
only requires appellant’s signature and date with instructions to file the motion within ten
days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20; see also In re
Schulman, 252 S.W.3d at 408–09.
In this case, appellant filed his original pro se response on January 11, 2022; a
supplemental pro se response on January 14, 2022; and a second supplemental pro se
response on February 4, 2022. On March 7, 2022, appellant filed a motion seeking pro
se access to the appellate record, which was granted on March 10, 2022. Appellant
received the record on April 4, 2022, and subsequently twice-requested an extension of
time to file his amended pro se response, both of which were granted. On July 5, 2022,
appellant filed his amended pro se response. 1 When appellate counsel files an Anders
brief and the appellant independently files a pro se response, the court of appeals has
1 On July 6, 2022, this Court sent a letter informing appellant that his amended pro se response
was marked ‘received,’ but was untimely, and provided him ten days to submit a motion for leave to file said
response. In addition, appellant was informed his amended pro se response was not compliant with Texas
Rules of Appellate Procedure 38.1 and 9.5. See TEX. R. APP. P. 38.1, 9.5. Though the time for appellant to
submit a motion for leave and an amended brief compliant with rule 38.1 and 9.5 has passed without
appellant having filed said items, we have nonetheless marked appellant’s amended pro se response as
‘filed’ on July 5, 2022. As such, we have considered appellant’s amended pro se response in fashioning
this memorandum opinion.
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two choices:
[i]t may determine that the appeal is wholly frivolous and issue an opinion
explaining that it has reviewed the record and finds no reversible error. Or,
it 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 the
issues.
Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (internal citations
omitted). We are “not required to review the merits of each claim raised in an Anders brief
or a pro se response.” Id. at 827. Rather, we must merely determine if there are any
arguable grounds for appeal. Id. If we determine there are such arguable grounds, we
must remand for appointment of new counsel. Id. Reviewing the merits raised in a pro se
response would deprive an appellant of the meaningful assistance of counsel. Id.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80 (1988). We have reviewed the record, counsel’s brief and appellant’s pro se
responses, and we have found nothing that would arguably support an appeal. See
Bledsoe, 178 S.W.3d at 827–28 (“Due to the nature of Anders briefs, by indicating in the
opinion that it considered the issues raised in the briefs and reviewed the record for
reversible error but found none, the court of appeals met the requirements of Texas Rule
of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 511.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s counsel has asked this Court for
permission to withdraw as counsel. See Anders, 386 U.S. at 744; see also In re
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Schulman, 252 S.W.3d at 408 n.17. We grant counsel’s amended motion to withdraw.
Within five days from the date of this Court’s opinion, counsel is ordered to send a copy
of this opinion and this Court’s judgment to appellant and to advise him of his right to file
a petition for discretionary review. 2 See TEX. R. APP. P. 48.4; see also In re Schulman,
252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
IV. CONCLUSION
We affirm the trial court’s judgment.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
11th day of August, 2022.
2 No substitute counsel will be appointed. Should appellant wish to seek further review of this case
by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary
review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed
within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion
for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for
discretionary review must be filed with the Clerk of the Texas Court of Criminal Appeals. See id. R. 68.3.
Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate
Procedure 68.4. See id. R. 68.4.
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