Richard Harold McMillion, Appellant v. The State of Texas, State (2016)

MEMORANDUM OPINION 1

A jury convicted Appellant Richard Harold McMillion of the possession of four or more but less than two hundred grams of methamphetamine,² and, upon his plea of true to the enhancement count, the trial court sentenced him to nine years' confinement and six months' suspension of his driver's license.³  Appellant's court-appointed appellate counsel has filed a motion to withdraw as counsel and a brief in support of that motion.  Counsel's brief and motion meet the requirements of Anders v. California ⁴ by presenting a professional evaluation of the record demonstrating why there are no arguable grounds for relief.  In compliance with Kelly v. State,⁵ counsel notified McMillion of his motion to withdraw, provided him a copy of the brief, informed him of his right to file a pro se response, informed him of his right to seek discretionary review should this court hold the appeal frivolous, and took concrete measures to facilitate McMillion's review of the appellate record.  Although Appellant was given an opportunity to file a pro se response to the Anders brief, he has not done so, nor has the State filed a brief in response to the Anders brief.

After an appellant's court-appointed counsel files a motion to withdraw on the ground that the appeal is frivolous and fulfills the requirements of Anders, this court is obligated to undertake an independent examination of the record.⁶  Only then may we grant counsel's motion to withdraw.⁷

We have carefully reviewed counsel's brief and the record.  We agree with counsel that this appeal is wholly frivolous and without merit, and we find nothing in the record that arguably might support the appeal.⁸

Accordingly, we grant counsel's motion to withdraw and affirm the trial court's judgment.

FOOTNOTES

1.   See Tex.R.App. P. 47.4.

2.   See Tex. Health & Safety Code Ann. §§ 481.102(6), 481.115(a), (d) (West 2010).

3.   See Tex. Penal Code Ann. § 12.32 (West 2011), § 12.42(b) (West Supp.2015);  Tex. Transp.  Code Ann. § 521.372(a)(1)-(2), (c) (West 2013).

4.   386 U.S. 738, 87 S.Ct. 1396 (1967);  see In re Schulman, 252 S.W.3d 403, 406–12 (Tex.Crim.App.2008) (orig.proceeding) (analyzing the effect of Anders).

5.   436 S.W.3d 313, 319 (Tex.Crim.App.2014).

6.   See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991);  Mays v. State, 904 S.W.2d 920, 922–23 (Tex.App.—Fort Worth 1995, no pet.).

7.   See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S.Ct. 346, 351 (1988).

8.   See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex.Crim.App.2005);  see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex.Crim.App.2006).

PER CURIAM