                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-18-00352-CR

TOMETHEUS LEE BRYANT,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 77th District Court
                            Limestone County, Texas
                             Trial Court No. 14397-A


                          MEMORANDUM OPINION

      Appellant Tometheus Lee Bryant was found guilty by a jury of the offense of

assault on a family/household member with a previous conviction. Bryant waived his

right to have the jury assess his punishment, and the trial court sentenced him to eight

years’ incarceration. Bryant appeals his conviction and sentence. We affirm the trial

court’s judgment as modified.
                                              I. Anders Brief

        Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d

493 (1967), appellant’s court-appointed appellate counsel has filed a brief and a motion

to withdraw with this Court, stating that his review of the record yielded no reversible

error upon which an appeal can be predicated. 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, 407 n.9 (Tex.

Crim. App. 2008) (“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 2003, no pet.)); Stafford v. State, 813

S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc).

        In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]

1978), Appellant’s counsel has carefully discussed why, under controlling authority,

there is no reversible error in the trial court’s judgment. Counsel has informed this Court

that he has: (1) examined the record and found no arguable grounds to advance on

appeal; (2) served a copy of the brief and counsel’s motion to withdraw on Appellant;

and (3) informed Appellant of his right to review the record and to file a pro se response.1


        1 Given counsel’s assertion that he has “furnished Appellant with a copy of the Anders brief and
the appellate record . . . and . . . informed Appellant of the right to file a pro se brief or response” and the
fact that appellant has not filed a request for the appellate record, we have fair assurance that appellate
counsel has complied with the Court of Criminal Appeals’s decision in Kelly v. State. See 436 S.W.3d 313,
319-20 (Tex. Crim. App. 2014).



Bryant v. State                                                                                         Page 2
See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; Stafford, 813 S.W.2d at 510 n.3; see also Schulman,

252 S.W.3d at 409 n.23.

        Appellant has responded to the Anders brief and asserts that there are issues that

should be addressed on appeal. Appellant argues that his conviction was improper

because the State failed to provide exculpatory evidence and because the State’s

witnesses were not believable. Appellant specifically complains that the investigating

officer did not take photographs of an injury to Appellant’s hand that Appellant told him

was caused by the victim or of the key chain that Appellant alleged caused the injury.

Appellant additionally complains that the officer did not take a statement from him

regarding the injury to his hand or the events leading to his arrest. Appellant also asserts

that one of the witnesses talked about Appellant’s innocence when she came to visit

Appellant at the Limestone County Jail and that those recorded conversations were not

submitted into evidence. He also asserts that the air pump that the victim claimed he

threw at her was never fingerprinted or submitted into evidence.             Appellant further

complains that the State did not analyze the combination of medications that the victim

was taking and have that data submitted into evidence. Appellant also contends that the

State withheld a witness’s mental health record. Appellant finally asserts that the victim

has a criminal record and that other witnesses who testified for the prosecution have a

“history of proven dishonest acts” that were not provided to him.

        Appellant did not raise a Brady violation before the trial court. The failure to do

so precludes appellate review. TEX. R. APP. P. 33.1; Pena v. State, 353 S.W.3d 797, 807 (Tex.



Bryant v. State                                                                            Page 3
Crim. App. 2011). Even if Appellant’s issues are preserved for review, they are without

merit.

         Prosecutors have an affirmative duty to turn over material, favorable evidence to

the defense. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215

(1963). The duty to disclose encompasses impeachment evidence as well as exculpatory

evidence. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). The first step in

establishing a Brady violation is for a defendant to show that the State failed to disclose

evidence which was known to the prosecution but was unknown to the defense. Ex parte

Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012). The prosecution is not required to

disclose exculpatory information that the State does not have in its possession and that is

not known to exist. Harm v. State, 183 S.W.3d 403, 407 (Tex. Crim. App. 2006). Nor is the

State required “to seek out exculpatory evidence independently on appellant’s behalf, or

furnish appellant with exculpatory or mitigating evidence that is fully accessible to

appellant from other sources.” Id.

         The majority of the evidence identified by Appellant was disclosed to the defense

prior to trial. Appellant’s attorney signed for a List of Released Discovery on May 18,

2018. The discovery included offense reports, two in-car videos, photographs, the

victim’s statement, dispatch call notes and 9-1-1 call recording, and related radio

communications. Subsequent deliveries to the defense consisted of a CD of jail calls,

letters by appellant to the prosecutor, paperwork related to prior convictions, another CD

of appellant’s jail phone calls, photographs of the victim’s apartment, and an apartment



Bryant v. State                                                                      Page 4
complex diagram. The State also gave Notice of Criminal History of all of the witnesses

who testified for the State prior to trial.

         Appellant provides nothing to indicate that either the mental health records of one

witness or a “history of proven dishonest acts” attributed to some of the witnesses was

information that was in the prosecution’s possession or that was inaccessible to appellant

from other sources. Further, the State had no duty to photograph appellant’s injury or to

fingerprint the air pump. Finally, the remainder of appellant’s claims were issues related

to the credibility of the witnesses who testified, including appellant. By its verdict, the

jury found the victim’s testimony of the events that occurred more credible than

appellant’s.

                                  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, 109 S.Ct. 346, 350, 102 L.Ed.2d 300 (1988). We have reviewed the entire record,

counsel’s brief, and appellant’s pro se response and have not found reversible error in this

matter. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005) (“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 requirement of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813

S.W.2d at 509. However, there is non-reversible error in the judgment regarding court

costs.




Bryant v. State                                                                        Page 5
        In his Anders brief, appellate counsel argues that we should modify the judgment

to delete $22.50 of the court costs assessed against appellant because section 133.103(b)

and (d) of the Local Government Code is unconstitutional. In Simmons v. State, this Court

held that section 133.103(b) and (d) is facially unconstitutional because the collected funds

are sent into a general-revenue fund and are not sufficiently related to the criminal-justice

system or a legitimate criminal-justice purpose. No. 10-18-00269-CR, ___ S.W.3d ___,

2019 Tex. App. LEXIS ____ * __ (Tex. App.—Waco Nov. 27, 2019, no pet. h.) (citing Johnson

v. State, 573 S.W.3d 328, 340 (Tex. App.—Houston [14th Dist.] 2019, pet. filed). In accord

Dulin v. State, 583 S.W.3d 351, 354 (Tex. App.—Austin Aug. 14, 2019, pet. filed);

Kremplewski v. State, No. 01-19-00033-CR, ___ S.W.3d. ___, 2019 Tex. App. LEXIS 6919, at

**5-8 (Tex. App.—Houston [1st Dist.] Aug. 8, 2019, pet. filed); King v. State, No. 11-17-

00179-CR, 2019 Tex. App. LEXIS 5902, at **13-14 (Tex. App.—Eastland July 11, 2019, pet.

filed) (mem. op., not designated for publication)). Based on our precedent, abatement to

the trial court for the appointment of new counsel is not required. See Ferguson v. State,

435 S.W.3d 291, 293-94 (Tex. App.—Waco 2014, pet. dism’d). Because this error does not

impact the determination of guilt or punishment and, therefore, does not result in a

reversal of the judgment, we may modify the judgment to correct the erroneous

assessment of $22.50 in court costs. Id. Accordingly, we modify the judgment to delete

$22.50 from the court costs imposed and affirm the trial court’s judgment as modified.

                                 III. Motion to Withdraw

        In accordance with Anders, appellant’s attorney has asked this Court for

permission to withdraw as counsel in this case. See Anders, 386 U.S. at 744, 87 S. Ct. at

Bryant v. State                                                                        Page 6
1400; see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776,

779-80 (Tex. App.—Dallas 1995, no pet.) (“If an attorney believes the appeal is frivolous,

he must withdraw from representing the appellant. To withdraw from representation,

the appointed attorney must file a motion to withdraw accompanied by a brief showing

the appellate court that the appeal is frivolous.”) (citations omitted)). We grant counsel’s

motion to withdraw. Notwithstanding counsel’s discharge, within five days of 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).




                                                            REX D. DAVIS
                                                            Justice




        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 must file a pro se petition for discretionary review. Any petition for discretionary
review must be filed within thirty days from the date of this opinion or the last timely motion for rehearing
or timely motion for en banc reconsideration was overruled by this Court. See TEX. R. APP. P. 68.2. Any
petition and all copies of the petition for discretionary review must be filed with the Clerk of the Court of
Criminal Appeals. See id. at R. 68.3. Any petition for discretionary review should comply with the
requirements of rule 68.4 of the Texas Rules of Appellate Procedure. See id. at R. 68.4; see also In re Schulman,
252 S.W.3d at 409 n.22.

Bryant v. State                                                                                          Page 7
Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed January 8, 2020
Do not publish
[CR25]




Bryant v. State                               Page 8
