Opinion
NUMBER 13-12-00011-CRNUMBER 13-12-00012-CR
09-05-2013
GERALD SMITH JR., Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Longoria
Memorandum Opinion by Justice Benavides
In Cause No. 13-12-00011-CR, Gerald Smith, Jr, appellant, pleaded guilty to unlawful possession of cocaine. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (c) (West Supp. 2011). He was sentenced to ten years' imprisonment in the Texas Department of Criminal Justice—Institutional Division, suspended, and given ten years of community supervision. Motions to revoke probation were filed setting forth various violations of conditions of his probation including several urinalysis testing positive for cocaine. Smith pleaded true to some but not all violations, his community supervision was revoked, and he was sentenced to ten years' imprisonment in the Texas Department of Criminal Justice—Institutional Division, the sentence to run concurrently with Cause No. 13-12-00012-CR.
In Cause No. 13-12-00012-CR, Smith pleaded guilty to aggravated robbery. See TEX. PENAL CODE ANN. § 29.03 (West Supp. 2011). He was sentenced to ten years' imprisonment in the Texas Department of Criminal Justice—Institutional Division, deferred, and given ten years of community supervision. Motions to revoke probation were filed setting forth various violations of conditions of his probation, including several urinalysis testing positive for cocaine. Smith pleaded true to some but not all violations, his community supervision was revoked, and he was sentenced to ten years' imprisonment in the Texas Department of Criminal Justice—Institutional Division, the sentence to run concurrently with Cause No. 13-12-00011-CR.
Smith's appellate counsel, concluding that "there are no arguable grounds to be advanced on appeal," filed an Anders brief in which he reviewed the merits, or lack thereof, of the appeal. We affirm.
I. DISCUSSION
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant's court-appointed appellate counsel has filed a brief with this Court, stating that his review of the record yielded no grounds or error upon which an appeal can be predicated. Although counsel's brief does not advance any arguable grounds of error, it does present a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced 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 carefully discussed why, under controlling authority, there are no errors in the trial court's judgment. Counsel has informed this Court that he has: (1) examined the record and found no arguable grounds to advance on appeal; (2) served a copy of the brief and counsel's motion to withdraw on appellant; and (3) informed appellant of his right to review the record and to file a pro se response within thirty days.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. See In re Schulman, 252 S.W.3d at 409.
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.)).
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 and counsel's brief and 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. Accordingly, we affirm the judgment of the trial court.
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.) (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. 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 to advise appellant of his right to file a petition for discretionary review.See TEX. R. APP. P. 48.4.
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 with the clerk of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3, 68.7. Furthermore, any petition for discretionary review should comply with the requirements of Rule 68.3 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.3."
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GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P.47.2 (b).