v.
State
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00361-CR
ANTHONY BARBER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1407138R
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MEMORANDUM OPINION1
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Appellant Anthony Barber pleaded guilty to assault bodily injury to a family member with a prior family violence conviction and true to one of the two convictions alleged in the enhancement notice. See Tex. Penal Code Ann. § 22.01(b)(2)(A) (West Supp. 2016). The jury assessed his punishment at 17 After Barber failed to file a pro se brief, on November 29, 2016, we sent the State a notice that its response, if any, to Barber’s counsel’s motion to withdraw was due December 29, 2016. On December 5, 2016, the State filed a letter indicating that it would not be filing any response.
On December 30, 2016, Barber filed a second “Motion For Extension of Time,” asserted his pro se brief (not the State’s response) was due December 29, 2016, and requested an additional 60 days to file his brief. On January 5, 2017, we denied Barber’s motion.
Because Barber failed to file a pro se brief for more than six months after his appointed counsel filed the motion to withdraw and the Anders brief, we consider this appeal without a response to the Anders brief filed by Barber’s court-appointed counsel. See generally Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (requiring court to allow appellant to file brief raising points but not requiring court to wait for appellant to file brief before setting case for submission); Deason v. State, No. 02-15-00213-CR, 2016 WL 1713464, at *1–2 (Tex. App.—Fort Worth Apr. 28, 2016, no pet.) (mem. op., not designated for publication) (deciding case without pro se appellant brief where appellant was given the opportunity to file a brief but did not do so); Hibler v. State, No. 02-14-00016-CR, 2015 WL 1407744, at *1 (Tex. App.—Fort Worth Mar. 26, 2015, pet. ref’d) (mem. op., not designated for publication) (same).
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; we find nothing in the record that arguably might support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005). Accordingly, we grant counsel’s motion to withdraw and affirm the trial court’s judgment.
/s/ Elizabeth Kerr ELIZABETH KERR JUSTICE PANEL: LIVINGSTON, C.J.; KERR and PITTMAN, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: March 23, 2017