No. 13-10-00314-CR
Delivered and filed December 8, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On appeal from the 275th District Court of Hidalgo County, Texas.
Before Chief Justice VALDEZ and Justices GARZA and VELA.
Memorandum Opinion by Justice GARZA.
On September 29, 2009, pursuant to a plea bargain, appellant Charles Theophilus Ward McLaughlin was placed on deferred adjudication community supervision for eight years after he pleaded nolo contendere to two counts of indecency with a child by sexual contact, a second-degree felony. See TEX. PENAL CODE ANN. § 21.11(a)(1), (d) (West Supp. 2010); TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5 (West Supp. 2010). Following a hearing on March 31, 2010, the trial court granted the State's motion to adjudicate, after finding that appellant had violated the conditions of supervision. The trial court adjudicated appellant guilty on both counts of indecency, revoked his community supervision, and assessed his punishment at eight years' imprisonment on each count, with the sentences to run concurrently. See TEX. PENAL CODE ANN. § 12.33 (West Supp. 2010). The trial court certified appellant's right to appeal, and this appeal followed. We affirm.
The State's motion to adjudicate contained various allegations, including that appellant committed the offense of evading arrest/detention, committed the offense of possession of marihuana, failed to comply with requirements of the sex offender program, and failed to pay laboratory fees. The State abandoned the possession of marihuana allegation, and appellant pleaded "true" to the remaining allegations. The trial court found nine of the State's allegations to be "true" as to Count One and three allegations to be "true" as to Count Two.
I. ANDERS BRIEF
Appellant's appellate counsel has filed a motion to withdraw and a brief in support thereof in which he states that he has diligently reviewed the entire record and has concluded that there is no reversible error. 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 has informed this Court that he has (1) examined the record and has found no arguable grounds to advance on appeal, (2) served copies of the brief and motion to withdraw on appellant, and (3) informed appellant of his right to review the record and to file a pro se response. See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503, 510 n. 3 (Tex. Crim. App. 1991). On November 14, 2011, this Court received appellant's pro se response. See In re Schulman, 252 S.W.3d 403, 409 (Tex. Crim. App. 2008). In his pro se response, appellant complained that: (1) his nolo contendere plea was involuntary; (2) his appointed counsel at the plea hearing was ineffective; and (3) he is not guilty because he was incarcerated on the date of the alleged offense of indecency in Count Two. 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 entire record, counsel's brief, and appellant's pro se response, and find that the appeal is wholly frivolous and without merit. 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 counsel 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.) ("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 that counsel must, within five days of the date of this opinion, 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).