III v. The State of Texas, Appellee.

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Court of Appeals of Texas, Corpus Christi-Edinburg.

Charles Leo Anderson III, Appellant, v. The State of Texas, Appellee.

NUMBER 13–15–00002–CR

Decided: August 31, 2015

Before Justices Rodriguez, Garza, and Longoria Memorandum Opinion by Justice Garza

MEMORANDUM OPINION

In 2013, pursuant to a plea agreement, appellant Charles Leo Anderson III pleaded guilty to indecency with a child, a second-degree felony offense.   See Tex. Penal Code Ann.. § 21.11(a), (d) (West, Westlaw through Ch. 46, 2015 R.S.).   The trial court placed appellant on eight years' deferred adjudication community supervision.

In October 2014, the State filed an amended motion to revoke appellant's community supervision, alleging numerous violations of the conditions of his community supervision, including failure to report to his supervision officer and failure to submit to a urinalysis test.   At the revocation hearing on December 11, 2014, appellant pleaded “true” to the State's allegations.   The trial court found the allegations “true,” revoked appellant's community supervision, adjudicated appellant guilty of indecency with a child, and sentenced him to twenty years' imprisonment.   We affirm.

I. Anders Brief

Appellant's appellate counsel has filed a motion to withdraw and a brief in support thereof in which she states that she has diligently reviewed the entire record and has found no non-frivolous issues.   See Anders v. California, 386 U.S. 738 (1967);  High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. [Panel Op.] 1978).   Counsel's brief meets the requirements of Anders as it presents a thorough, professional evaluation showing why there are no arguable grounds for advancing an appeal.   See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex.Crim.App.2008) (orig.proceeding) (“In Texas, an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities.”);  Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex.Crim.App.1991) (en banc).

In compliance with Kelly v. State, 436 S.W.3d 313, 319 (Tex.Crim.App.2014), counsel has carefully discussed why, under controlling authority, there is no reversible error in the trial court's judgment.   Counsel has informed this Court that she has (1) notified appellant that she has filed an Anders brief and a motion to withdraw;  (2) provided appellant with copies of both pleadings;  (3) informed appellant of his rights to file a pro se response,1 to review the record preparatory to filing that response, and to seek review if we conclude that the appeal is frivolous;  and (4) provided appellant with copies of the clerk's record and reporter's record.   See Anders, 386 U.S. at 744;  Kelly, 436 S.W.3d at 319–20.   More than an adequate time has passed, and appellant has not filed a pro se response.

II. Independent Review

Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the appeal is wholly frivolous.  Penson v. Ohio, 488 U.S. 75, 80 (1988).   We have reviewed the record and counsel's brief, and we have found no reversible error.   See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex.Crim.App.2005) (“Due to the nature of Anders briefs, by indicating in the opinion it considered the issues raised in the brief and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1.”);   Stafford, 813 S.W.2d at 509.   Accordingly, we affirm the judgment of the trial court.

III. Motion to Withdraw

In accordance with Anders, appellant's appellate counsel has filed a motion to withdraw.   See Anders, 386 U.S. at 744;  see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80 (Tex.App.–Dallas 1995, no pet.)  (“If an attorney believes the appeal is frivolous, he must withdraw from representing the appellant.   To withdraw from representation, the appointed attorney must file a motion to withdraw accompanied by a brief showing the appellate court that the appeal is frivolous.”) (citations omitted)).   We grant the motion to withdraw.

We order counsel to send a copy of the opinion and judgment to appellant and to advise him of his right to file a petition for discretionary review, within five days of the date of this opinion.2  See Tex. R. App. P.P. 48.4;  see also In re Schulman, 252 S.W.3d at 412 n.35;  Ex parte Owens, 206 S.W.3d 670, 673 (Tex.Crim.App.2006).

FOOTNOTES

1.   The Texas Court of Criminal Appeals has held that “the pro se response need not comply with the rules of appellate procedure in order to be considered.   Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues.”  In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex.Crim.App.2008) (orig.proceeding) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex.App.–Waco 1997, no pet.)).

2.   No substitute counsel will be appointed.   Should appellant wish to seek further review by the Texas Court of Criminal Appeals, he 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 date of either this opinion or the last timely motion for rehearing that was overruled by this Court.   See Tex.R.App. P. 68.2.   Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals, see Tex.R.App. P. 68.3(a), and must comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure.   See Tex.R.App. P. 68.4.

Memorandum Opinion by Justice Garza