David Marshall v. the State of Texas

Opinion filed May 22, 2025

In The

Eleventh Court of Appeals
__________

No. 11-23-00217-CR
__________

DAVID MARSHALL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court
Taylor County, Texas
Trial Court Cause No. 29817-A

MEMORANDUM OPINION
Appellant, David Marshall, was convicted by a jury of robbery, a second-
degree felony, and the jury assessed Appellant’s punishment at imprisonment for
sixteen years in the Institutional Division of the Texas Department of Criminal
Justice. See TEX. PENAL CODE ANN. §§ 12.42, 29.02 (West 2019). Because we
agree with Appellant’s court-appointed counsel that there are no arguable issues to
present on appeal, we affirm. See Anders v. California, 386 U.S. 738 (1967); In re
Schulman, 252 S.W.3d 403, 406–09 (Tex. Crim. App. 2008).
The evidence presented at trial demonstrates that Appellant and his mother,
Tommye Lynn Marshall1, got into an argument outside Marshall’s apartment. As
Appellant became increasingly upset, he pulled out a knife, and told Marshall two
or three times, “I’ll cut you, b---h.” He then pushed Marshall to the ground, got on
top of her, and forcefully took her car key from her pocket. When Marshall’s
neighbor, Gordon Williamson, heard Marshall screaming for help, he came outside
and saw Marshall on the ground “being attacked” by Appellant. As Williamson
attempted to pull Appellant off Marshall, Appellant began scratching Williamson’s
arm and face, then fled in Marshall’s vehicle. Several days later, Appellant was
found in Marshall’s stolen vehicle in San Bernadino County, California.
After the State rested its case-in-chief, Appellant testified. He admitted to
“being belligerent like [Marshall] said,” then brandishing the knife “for a minute,
two maybe, and flipped it back shut” before he approached Marshall and pushed her
to the ground. Appellant agreed that he took Marshall’s phone, but “wasn’t trying
to take it to keep it or steal it; [he] was just trying to keep her from using it.”
Appellant told the jury that he decided to take his mother’s vehicle when Williamson
“tackled [him] and [they] scuffled.” He continued driving because he “had it in [his]
head that [he] had people chasing [him],” and threw Marshall’s phone in a dumpster
because he “was afraid of being followed.” Finally, Appellant acknowledged that
he was convicted of and sentenced to imprisonment for eight years for committing
burglary of a habitation in 2016 and was on parole when he took his mother’s phone
and vehicle.

To avoid confusion, we will only use Appellant’s and his mother’s shared last name when referring
1

to Tommye Lynn Marshall, and refer to David Marshall as “Appellant.”

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The trial court granted Appellant’s requested lesser-included offense
instruction in the jury charge that permitted the jury to find him guilty of assault by
threat, a Class A misdemeanor. See PENAL § 22.01(a)(2), (b); TEX. CODE CRIM.
PROC. ANN. art. 37.09 (West 2006). The jury found Appellant guilty of robbery as
alleged in Count Two of the indictment.2 During the punishment phase of trial,
Appellant pleaded “true” to the enhancement allegation, and the jury assessed a
sixteen-year term of imprisonment. See PENAL § 12.42. The trial court sentenced
Appellant accordingly.
Appellant’s court-appointed counsel has filed a motion to withdraw and
supporting brief in which he assures this court that, after conducting a professional
evaluation of the record and applicable law, there are no arguable issues to present
on appeal. See Anders, 386 U.S. 738; Schulman, 252 S.W.3d at 406–09. Counsel
further certifies that he provided Appellant with a copy of the brief, a copy of the
motion to withdraw, an explanatory letter, and a pro se form motion to access the
appellate record. Counsel also advised Appellant of his right to review the record
and file a response to counsel’s brief, and of his right to file a petition for
discretionary review. See TEX. R. APP. P. 68; Anders, 386 U.S. at 742–44; Kelly v.
State, 436 S.W.3d 313 (Tex. Crim. App. 2014); Schulman, 252 S.W.3d at 409–12;
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991). Appellant has not filed
a pro se response to counsel’s Anders brief. Following the procedures outlined in
Anders and Schulman, we have independently reviewed the record, and likewise

2
Count One of the indictment alleged that Appellant committed aggravated robbery by using and
exhibiting the knife as a deadly weapon against Marshall. See PENAL § 29.03. The jury acquitted him of
that offense.

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conclude that no arguable grounds for appeal exist.3 See Anders, 386 U.S. at 744;
Bledsoe v. State, 178 S.W.3d 824, 826–27 & n.6 (Tex. Crim. App. 2005).
Accordingly, we grant counsel’s motion to withdraw and affirm the judgment
of the trial court.

JOHN M. BAILEY
CHIEF JUSTICE

May 22, 2025
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

We note that Appellant has the right to file a petition for discretionary review of our decision with
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the Court of Criminal Appeals. See TEX. R. APP. P. 68.

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