      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                               ON MOTION FOR REHEARING


                                       NO. 03-09-00061-CR



                                  Barry Dean Garrett, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 63208, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                             MEMORANDUM OPINION


               We have previously granted appellant’s motion for rehearing and withdrawn our

opinion and judgment dated November 10, 2009. The following is now substituted in its place.

               A jury convicted appellant Barry Dean Garrett of the offense of aggravated assault

on a public servant with a deadly weapon. See Tex. Penal Code Ann. § 22.02 (West Supp. 2008).

The district court, after finding true four enhancement paragraphs alleging prior convictions,

assessed punishment at life imprisonment.

               The jury heard evidence that, on the night of May 10, 2008, Garrett attacked

Gary Smith, a police sergeant with the City of Temple Police Department. Smith testified that

while he was on patrol he encountered a person walking in the middle of the road. The person, later

identified as Garrett, was wearing a pair of shorts and no shirt. Smith initiated contact with Garrett,
who appeared agitated and proceeded to yell and scream at Smith. Smith eventually succeeded in

getting Garrett to calm down and had him sit on the curb while Smith called dispatch and requested

a background check. Smith then discovered that Garrett had an outstanding warrant. At this point,

Smith testified, he called for backup.

               While Smith was doing so, Garrett again became agitated and began asking Smith

if he could leave. Smith, who now believed that Garrett was either intoxicated or under the influence

of a controlled substance, refused to let Garrett leave and tried to grab his arm. According to Smith,

Garrett responded by swinging and flailing his arms. Smith testified that he backed away from

Garrett and walked toward his patrol car to request that backup arrive quickly. Garrett followed

Smith to the car, “balled up his fist” and “started to charge” at Smith. Smith “took that as a fight

stance,” so he responded by using his pepper spray on Garrett. Smith explained that Garrett then

“put his head down, put his hand up, and started charging at me with his fists clinched.”

               A struggle between Garrett and Smith ensued. At some point during the struggle,

Garrett “took off running,” and Smith started running after him. During the chase, Smith testified,

Garrett approached a wood pile, picked up a board of wood, turned around, and swung the board at

Smith. The board hit Smith in his left arm, causing Smith to lose his balance and fall to the ground,

dislocating his shoulder in the process. Garrett then approached Smith with another, larger board

of wood and began swinging it at Smith, hitting him “several times” in his upper body and on the

top of his head. While Garrett continued to beat Smith with the board, Smith was on the ground

on his back. Unable to use his arms to defend himself, he tried to fend off Garrett by kicking him,

to no avail.



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                Eventually, a car pulled up and the driver began honking his horn. This caused

Garrett to stop hitting Smith and walk away. Smith got up, again called for backup, and then

attempted to follow Garrett on foot so that he would not escape. Garrett eventually stopped walking,

turned around, and raised the board as if to strike Smith again. Before he could do so, however,

other police officers arrived and arrested Garrett.

                After Smith testified, the State called other witnesses to the assault who testified

consistent with the foregoing recitation of facts. Other police officers who responded to Smith’s

call for backup also testified, as did the detective who investigated the assault. This detective

characterized the board used by Garrett in the assault as a deadly weapon.

                In his defense, Garrett called the police officer who transported Garrett to jail. This

officer testified that Garrett was transported to jail “without incident.” Finally, Garrett testified. He

claimed that it was not his intention to hurt Smith and that he was only defending himself from

Smith’s “aggressive tactic” in “attacking” him with the pepper spray.

                Garrett’s court-appointed attorney has filed a motion to withdraw supported by a

brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of

Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record

demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S.

75, 109 S. Ct. 346 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State,

516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972);

Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Garrett received a copy of counsel’s




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brief and has submitted a written response and a supplemental response objecting to counsel’s

motion to withdraw and asserting reasons why he does not believe the appeal is frivolous.

               We have reviewed the record, counsel’s brief, and Garrett’s written responses and

find no reversible error. See Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009); Bledsoe

v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We agree with counsel that the appeal

is frivolous and without merit. We find nothing in the record that might arguably support the appeal.

Counsel’s motion to withdraw is granted.

               The judgment of conviction is affirmed.




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed on Motion for Rehearing

Filed: May 21, 2010

Do Not Publish




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