Opinion
NUMBER 13-13-00073-CR
05-08-2014
CHRISTOPHER LAWRENCE ATHEY, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 54th District Court
of McLennan County, Texas.
MEMORANDUM OPINION
This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion by Chief Justice Valdez
Appellant, Christopher Lawrence Athey, was indicted for burglary of a habitation, with intent to commit theft. See TEX. PEN. CODE ANN. § 30.02 (West, Westlaw through 2013 3d C.S). In the indictment, the State included an enhancement paragraph, alleging that appellant had previously been convicted of a felony, to-wit: burglary of a habitation, which, if true, would enhance the offense to a first degree felony. See id. § 12.42(b) (West, Westlaw through 2013 3d C.S). Following a trial, a jury found appellant guilty of the offense. After finding the enhancement paragraph true, the jury assessed appellant's punishment at forty-seven years' imprisonment.
Concluding that there are no errors that would result in the reversal of the judgment of the trial court, appellant's counsel filed an Anders brief in which he reviewed the merits, or lack thereof, of the appeal. We affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant's appellate counsel has filed a motion to withdraw and a brief with this Court stating that he has found no reversible error committed by the trial court and no arguable ground of error upon which an appeal can be predicated. 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) ("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).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), appellant's counsel has explained why, under controlling authority, there are no reversible errors in the trial court's judgment. Counsel has informed this Court that he has complied with the requirements of Anders by (1) examining the record and applicable law and finding no arguable grounds to advance on appeal, (2) serving a copy of the brief and motion to withdraw as counsel on appellant, (3) informing appellant of his right to review the record and to file a pro se response raising any ground of error or complaint which he may desire. See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. More than an adequate period of time has passed, and appellant has not filed a pro se response with this Court.See In re Schulman, 252 S.W.3d at 409 n. 23.
Appellant has filed multiple motions for extension of time to file a pro se response. Following his last motion to date, we issued an order, on September 12, 2013, granting appellant's motion "insofar as appellant is ORDERED to file his pro se response to the Anders brief with this Court within twenty days of the date of this order" and denying the motion "insofar as the Court will not allow an extension until October 10, 2013." The order also stated, "NO FURTHER EXTENTIONS WILL BE GRANTED IN THIS MATTER." As noted above, appellant has still 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 case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). We have reviewed the entire record, counsel's Anders brief, the State's brief, and appellant's pro se 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. There is no reversible error in the record. Accordingly, we affirm.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant's attorney has asked this Court for permission to withdraw as counsel. 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 the opinion and judgment to appellant and 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 appellant 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 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 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.
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__________
ROGELIO VALDEZ
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).