Opinion
NUMBER 13-17-00474-CR
03-29-2018
ROBERT LEE ALEXANDER LEATHERWOOD, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court of Aransas County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Hinojosa
Memorandum Opinion by Justice Rodriguez
Appellant Robert Lee Alexander Leatherwood was indicted for possession of marijuana in an amount of five pounds or less, but more than four ounces, a state jail felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(3) (West, Westlaw through 2017 1st C.S.). Pursuant to a plea agreement, the trial court deferred adjudication and placed Leatherwood on community supervision for two years. The State filed a second motion to revoke, and Leatherwood pleaded true to the allegations in the motion. After the trial court found that Leatherwood violated the conditions of his community supervision, it revoked Leatherwood's community supervision and found him guilty of the charged offense. The court sentenced Leatherwood to eighteen months in the State Jail Division of the Texas Department of Criminal Justice, with 297 days of credit for time served. Determining that the record does not show any arguable, non-frivolous issue to raise on appeal, counsel filed an Anders brief in which he reviewed the merits, or lack thereof. We affirm.
I. COMPLIANCE WITH ANDERS
Pursuant to Anders v. California, Leatherwood's counsel filed a brief stating that he has diligently reviewed the entire record and the applicable law and, in his opinion, this appeal is without merit and wholly frivolous because the record reflects no reversible error. See 386 U.S. 738, 744-45 (1967). Counsel's brief meets the requirements of Anders as it presents a professional evaluation showing why counsel believes there are no meritorious 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.") (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) (en banc).
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, 318-19 (Tex. Crim. App. 2014), counsel has demonstrated that he has complied with the requirements of Anders by discussing why he has determined that, under controlling authority, any appeal from the judgment would be without merit and frivolous. Counsel has also informed this Court, in writing, that he has: (1) notified Leatherwood that, in his opinion, the appeal is without merit; (2) moved to withdraw as his counsel; (3) provided Leatherwood with a copy of the brief, his motion to withdraw, and the record; (4) informed Leatherwood of his right to file a pro se response, to review the appellate record preparatory to filing that response, and to seek discretionary review pro se if the court of appeals concludes that the appeal is frivolous; and (5) provided Leatherwood with a form motion for pro se access to the appellate record, with instructions to file the motion within ten days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 318-19; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23.
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.)).
On December 21, 2017, Leatherwood filed a timely pro se motion for access to the appellate record, requesting thirty days from the date he received the appellate record to file a pro se response. We granted the motion. The record shows that Leatherwood was provided access to a copy of the clerk's record on January 11, 2018 and to a copy of the reporter's record on January 18, 2018. More than an adequate time has passed, and Leatherwood has not filed a pro se response. See In re Schulman, 252 S.W.3d at 409.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, this Court must conduct a full examination of all proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). We have reviewed the entire record and counsel's brief, and we have found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005) ("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. We affirm the judgment of the trial court.
IV. MOTION TO WITHDRAW
In accordance with Anders, Leatherwood's attorney has asked this Court for permission to withdraw as counsel for Leatherwood. 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.) (noting that "[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 that was carried with the case on December 19, 2017. Within five days of the date of this Court's opinion, counsel is ordered to send a copy of the opinion and the judgments to Leatherwood and to advise him of his right to file a petition for discretionary review. 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).
No substitute counsel will be appointed. Should Leatherwood wish to seek further review of this case 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 id. R. 68.3. Any petition for discretionary review should comply with the requirements of rule 68.4 of the Texas Rules of Appellate Procedure. See id. R. 68.4.
NELDA V. RODRIGUEZ
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 29th day of March, 2018.