From Casetext: Smarter Legal Research

Holcomb v. State

Court of Appeals For The First District of Texas
Jun 1, 2017
NO. 01-16-00349-CR (Tex. App. Jun. 1, 2017)

Opinion

NO. 01-16-00349-CR

06-01-2017

DONNA GAYLE HOLCOMB, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 230th District Court Harris County, Texas
Trial Court Case No. 1141352

MEMORANDUM OPINION

Appellant, Donna Gayle Holcomb, was convicted of the offense of aggregate theft of property valued at $100,000 or more but less than $200,000 and the jury assessed her punishment at 11 years' imprisonment and a fine of $10,000. On appeal, we held that the trial court's submission in the charge of a complaint as to which the trial court had granted a directed verdict violated double jeopardy, bringing aggregate theft to less than $100,000. This court remanded the case to the trial court to reform the judgment to show a conviction for third-degree felony theft of property with an aggregated value between $20,000 and $100,000 and ordered the trial court to conduct a new punishment hearing. The jury assessed Holcomb's punishment at 2 years' imprisonment, the minimum sentence within the applicable range, after she, acting pro se, asked for the maximum sentence, 10 years. The trial court certified that this was not a plea-bargain case, and that appellant had the right of appeal. See TEX. R. APP. P. 25.2(a)(2). Appellant timely filed a notice of appeal.

See TEX. PENAL CODE. § 31.03 (West 2007).

See Holcomb v. State, 445 S.W.3d 767, 772 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd).

Appellant's appointed counsel on appeal has filed a motion to withdraw, along with an Anders brief stating that the record presents no reversible error and that, therefore, the appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). Counsel's brief meets the Anders requirements by presenting a professional evaluation of the record and supplying this Court with references to the record and legal authority. See id. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has thoroughly reviewed the record and that he is unable to advance any grounds of error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

Appellant's counsel has informed us that he mailed a copy of the motion to withdraw and Anders brief to appellant and informed her of her right to file a response and to access the record. See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008). Furthermore, a copy of the appellate records has been delivered to appellant for her review and to file a response. See Kelly v. State, 436 S.W.3d 313, 322 (Tex. Crim. App. 2014). Appellant has not filed a pro se Anders response.

We have independently reviewed the entire record in this appeal, and we conclude that no reversible error exists in the record, that there are no arguable grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—determines, after full examination of proceedings, whether appeal is wholly frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005) (reviewing court is not to address merits of each claim raised in Anders brief or pro se response after determining there are no arguable grounds for review); Mitchell, 193 S.W.3d at 155. An appellant may challenge a holding that there are no arguable grounds for appeal by filing a petition for discretionary review in the Texas Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 n.6.

Accordingly, we affirm the judgment of the trial court and grant counsel's motion to withdraw. See TEX. R. APP. P. 43.2(a). Attorney Kevin P. Keating must immediately send the required notice and file a copy of that notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(c). We dismiss any other pending motions as moot.

Appointed counsel still has a duty to inform appellant of the result of this appeal and that she may, on her own, pursue discretionary review in the Texas Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).

PER CURIAM Panel consists of Justices Keyes, Bland, and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).


Summaries of

Holcomb v. State

Court of Appeals For The First District of Texas
Jun 1, 2017
NO. 01-16-00349-CR (Tex. App. Jun. 1, 2017)
Case details for

Holcomb v. State

Case Details

Full title:DONNA GAYLE HOLCOMB, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals For The First District of Texas

Date published: Jun 1, 2017

Citations

NO. 01-16-00349-CR (Tex. App. Jun. 1, 2017)