SHIELDS v. STATE (2017)

MEMORANDUM OPINION

Delmis Shields pleaded guilty to the offense of intoxication assault in two separate cases. The trial court assessed punishment at ten years' imprisonment, suspended in favor of ten years' community supervision in each case. On May 11, 2015, the State filed a motion to revoke in each case, alleging Shields violated the conditions of his supervision by consuming alcohol and failing to report as required and pay required fees. Shields pleaded true to the allegations. At the conclusion of the revocation hearing, the trial court revoked Shields's community supervision and sentenced him to eight years' imprisonment.

Shields's court-appointed attorney filed a brief representing that he conducted a professional evaluation of the record and determined there are no arguable grounds to be advanced on Shields's behalf. Counsel concluded this appeal is without merit. The brief meets the requirement of Anders v. California. See Anders v. California, 386 U.S. 738 (1967). Shields was provided copies of counsel's brief and motion to withdraw and was informed of his right to review the record and file his own brief. See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014). Additionally, counsel advised Shields to file a motion in this court if he wished to review the appellate record and enclosed a form motion for that purpose. See id.; Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.—San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.). Thereafter, this court set deadlines for Shields to file any motion for the record and any pro se brief. Shields did not file a pro se brief.

Upon presentation of an Anders brief, the court of appeals has two choices. It may determine the appeal is wholly frivolous and issue an opinion explaining that it reviewed the record and finds no reversible error, or it may determine that arguable grounds for appeal exist and remand the cause to the trial court so new counsel may be appointed to brief the issues. Anders, 386 U.S. at 744; Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (citing Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Only after the issues have been briefed by new counsel may the court of appeals address the merits of the issues raised. Bledsoe, 178 S.W.3d at 827.

After reviewing the record of the trial on the merits and counsel's Anders brief, this court concludes there is no reversible error and agrees this appeal is frivolous and without merit. See id. at 826-27.

Accordingly, the judgment of the trial court is affirmed, and appellate counsel's request to withdraw is granted.¹ Nichols, 954 S.W.2d at 86; Bruns, 924 S.W.2d at 177 n.1.

FOOTNOTES

1.   No substitute counsel will be appointed. Should Shields wish to seek further review of this case by the Texas Court of Criminal Appeals, Shields must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the later of: (1) the date of this opinion; or (2) the date the last timely motion for rehearing is overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed in the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.

Irene Rios, Justice