Unreported / Non-Citable
Background
Devon Dinger was indicted on five counts arising from the sexual abuse of children: continuous sexual abuse of a young child (Count One, a first-degree felony), two counts of aggravated sexual assault of a child younger than 14 (Counts Two and Three, first-degree felonies), and two counts of indecency by contact with a child younger than 17 (Counts Four and Five, second-degree felonies). Pursuant to a plea bargain, Dinger pleaded guilty to Counts Two through Five; in exchange, the State waived Count One and recommended deferred adjudication community supervision for ten years, which the trial court imposed.
Approximately two years and nine months into the supervision period, the State filed an amended petition to proceed to adjudication on each count, alleging four violations of the supervision conditions. At the adjudication hearing, Dinger pleaded true to all four allegations. The trial court found the allegations true, adjudicated Dinger guilty on Counts Two through Five, and sentenced him to fifty years’ confinement on each of the two first-degree felony counts and twenty years on each of the two second-degree felony counts, all sentences to run concurrently.
Dinger appealed. His appointed counsel reviewed the record, concluded the appeal was frivolous, and filed a motion to withdraw along with an Anders brief. Counsel complied with the requirements of Kelly v. State by providing Dinger copies of the brief, informing him of his rights to file a pro se response and to seek discretionary review, and furnishing a form motion for pro se access to the appellate record. Dinger did not file a pro se response, and the State filed a letter concurring that no meritorious grounds for appeal existed.
The Court’s Holding
The Second Court of Appeals, in a memorandum opinion by Justice Birdwell, granted counsel’s motion to withdraw and affirmed the trial court’s judgments on all counts. After independently reviewing the record and the Anders brief, the court found the appeal wholly frivolous and without merit, identifying nothing in the record that might arguably support reversal.
The court applied the standard from Bledsoe v. State and Meza v. State, under which an appellate court must conduct its own examination of the record when an Anders brief is filed to determine whether any arguable ground for relief exists. Finding none, the court concluded that affirmance and withdrawal of counsel were appropriate. The opinion was designated “Do Not Publish” under Texas Rule of Appellate Procedure 47.2(b).
Key Takeaways
- A defendant who pleads true to all alleged supervision violations at an adjudication hearing leaves virtually no arguable grounds for appeal of the resulting adjudication and sentence.
- When appointed appellate counsel files a proper Anders brief and complies with Kelly v. State notice requirements, the appellate court independently reviews the record; if no arguable issue is found, it may grant the motion to withdraw and affirm.
- Sentences within the statutory range for the offense — here, 50 years for first-degree felonies (range: 5–99 years or life) and 20 years for second-degree felonies (range: 2–20 years) — are not subject to successful challenge on appeal absent other error.
- A defendant’s failure to file a pro se response to an Anders brief, combined with the State’s concurrence in the frivolousness finding, reinforces the court’s determination that no meritorious issue exists.
Why It Matters
This case illustrates the narrow appellate landscape facing defendants who enter plea bargains, later violate deferred adjudication conditions, and plead true to those violations at adjudication hearings. Each of those steps — the original guilty plea, the plea of true, and a sentence within the statutory range — forecloses most avenues of appellate relief, making a properly filed Anders brief the likely procedural end point.
For practitioners, the decision is a reminder of the obligations imposed by Anders and Kelly in Texas criminal appeals: counsel must conduct a genuine professional evaluation of the record and provide the defendant a meaningful opportunity to respond before the court will grant withdrawal. Meeting those procedural requirements, as counsel did here, allows the appeal to conclude efficiently when no legitimate issue exists.