Amanda Jackel, Appellant, v. The State of Texas, Appellee.

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Court of Appeals of Texas, Corpus Christi-Edinburg.

Amanda Jackel, Appellant, v. The State of Texas, Appellee.

NUMBER 13–14–00027–CR

Decided: December 29, 2015

Before Chief Justice Valdez and Justices Rodriguez and Longoria

MEMORANDUM OPINION

Appellant, Amanda Jackel, was convicted of aggravated assault with a deadly weapon on a public servant and sentenced to ten years of confinement at the Texas Department of Criminal Justice, Correctional Institutions Division.  See Tex. Penal Code Ann. §§ 22.01, 22.02 (West, Westlaw through 2015 R.S.).  Appellant's court-appointed counsel has filed an Anders brief.  See Anders v. California, 386 U.S. 738, 744 (1967).1  We affirm.

I. Anders Brief

Pursuant to Anders v. California, appellant's court-appointed appellate counsel has filed a brief and a motion to withdraw with this Court, stating that her review of the record yielded no grounds of error upon which an appeal can be predicated.  See id.  Counsel's brief meets the requirements of Anders as it presents a professional evaluation demonstrating why there are no arguable grounds to advance on 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.”) (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex.App.—Corpus Christi 2003, no pet.));  Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex.Crim.App.1991).  Despite concluding that she found no non-frivolous grounds for appeal, Jackel's counsel highlights two issues for this Court's consideration:  (1) that the evidence was legally insufficient to support the conviction;  and (2) that appellant received ineffective assistance of counsel.  In each circumstance, counsel explained why neither of these issues presented arguable grounds for appeal.

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. [Panel Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex.Crim.App.2014), appellant's counsel carefully discussed why, under controlling authority, there is no reversible error in the trial court's judgment.  Counsel has informed this Court, in writing, that counsel has:  (1) notified appellant that counsel has filed an Anders brief and a motion to withdraw;  (2) provided appellant with copies of both pleadings;  (3) informed appellant of her rights to file a pro se response,2 to review the record preparatory to filing that response, and to seek discretionary review if the court of appeals concludes that the appeal is frivolous;  and (4) provided appellant with a form motion for pro se access to the appellate record, lacking only the appellant's signature and the date, and including the mailing address for the court of appeals, with instructions to file the motion within ten days.  See Anders, 386 U.S. at 744;  Kelly, 436 S.W.3d at 319–20;  Stafford, 813 S.W.2d at 510 n.3;  see also In re Schulman, 252 S.W.3d at 409 n.23.

On July 29, 2014, pro se appellant timely filed a motion for access to the appellate record.  On August 8, 2014, this Court issued an order directing the trial court to:  (1) ensure that appellant had the opportunity to fully examine the appellate record within thirty days, and (2) notify our Court in writing as to the date upon which the appellate record was made available to appellant.  The order further granted appellant a period of thirty days from the day the appellate record was first made available to file her pro se response with this Court and granted the State an additional twenty days thereafter to file its response thereto.  On August 14, 2014, in accordance with our order, the trial court sent appellant the appellate record.

On September 19, 2014, appellant filed a motion for extension of time to file her response.  This Court granted appellant's motion for extension of time to file her response and granted her an extension of time until November 10, 2014 to file her response.  Nevertheless, appellant did not file her response.  On April 20, 2015, the Clerk of this Court notified appellant that her pro se response had not been filed and the case remained pending.  To date, more than one year after it was due, appellant has not filed her 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 case is wholly frivolous.  Penson v. Ohio, 488 U.S. 75, 80 (1988).  A court of appeals has two options when an Anders brief is filed.  After reviewing the entire record, it may:  (1) determine that the appeal is wholly frivolous and issue an opinion explaining that it finds no reversible error;  or (2) determine that there are arguable grounds for appeal and remand the case to the trial court for appointment of new appellate counsel.  Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex.Crim.App.2005).  If the court finds arguable grounds for appeal, it may not review those grounds until after new counsel has briefed those issues on appeal.  Id.

We have reviewed the entire record and the two issues highlighted in counsel's brief, and we have found nothing that would arguably support an appeal.  See Id. (“Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1.”);  Stafford, 813 S.W.2d at 509.  There is no reversible error in the record.  Accordingly, the judgment of the trial court is affirmed.

III. Motion to Withdraw

In accordance with Anders, appellant's attorney has asked this Court for permission to withdraw as counsel for appellant.  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.)  (“[I]f 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 counsel's motion to withdraw.  Within five days of the date of this Court's opinion, counsel is ordered to send a copy of this opinion and this Court's judgment to appellant and to advise her of her right to file a petition for discretionary review.3  See Tex.R.App. 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.   This appeal was transferred to this Court from the Tenth Court of Appeals by order of the Texas Supreme Court.  See Tex. Gov't Code Ann. § 22.220(a) (West, Westlaw through 2015 R.S.) (delineating the jurisdiction of appellate courts);  id. 73.001 (West, Westlaw through 2015 R.S.) (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer).

2.   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) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex.App.—Waco 1997, no pet.)).

3.   No substitute counsel will be appointed.  Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, she 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 or timely motion for en banc reconsideration 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 Court of Criminal Appeals.  See id.  R. 68.3.  Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4.  See id.  R. 68.4.

Memorandum Opinion by Chief Justice Valdez

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