NUMBER 13-14-00216-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DALE HENDERSON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the Criminal District Court
of Jefferson County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion by Justice Longoria
Appellant, Dale Foster Henderson a/k/a Dale Austin Henderson, was convicted of
possession of a prohibited substance (specifically, an unspecified amount of heroin) while
in a correctional facility and sentenced to imprisonment for twenty years. See TEX. PENAL
CODE ANN. § 38.11(a)(1) & (g) (West, Westlaw through 2013 3d C.S.). Appellant’s court-
appointed counsel has filed an Anders brief. See Anders v. California, 386 U.S. 738, 744
(1967). We affirm.1
I. ANDERS BRIEF
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
has filed a brief and a motion to withdraw with this Court, stating that his review of the
record yielded no grounds of error upon which an appeal can be predicated. See id.
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) and Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014), appellant’s
counsel carefully discussed why, under controlling authority, there is no reversible error
in the trial court’s judgment. Counsel has informed this Court, in writing, that counsel has:
(1) notified the appellant that counsel has filed an Anders brief and a motion to withdraw;
(2) provided the appellant with copies of the pleadings; (3) informed the appellant of his
rights to file a pro se response and to review the record preparatory to filing that response;
and (4) provided appellant with a copy of the appellate record. See Anders, 386 U.S. at
1 This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont, Texas
pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN.
§ 73.001 (West, Westlaw through 2013 3d C.S.).
2
744; Kelly, 436 S.W.3d at 319, Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman,
252 S.W.3d at 409 n.23.2
More than a reasonable amount of time has elapsed since counsel provided
appellant with a copy of the appellate record, and appellant has not filed a pro se
response. The State has also not filed a brief.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, the Court 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). The Court has two options when an Anders brief and a motion to
withdraw are filed. After reviewing the entire record, it may (1) determine that the appeal
is wholly frivolous and issue an opinion explaining that it finds no reversible error or (2)
determine that there are arguable grounds for appeal and remand the case to the trial
court for appointment of new appellate counsel. Bledsoe v. State, 178 S.W.3d 824, 826–
27 (Tex. Crim. App. 2005). If the Court finds arguable grounds for appeal, it may not
review those grounds until after new counsel has briefed those issues on appeal. Id.
The Court has reviewed the entire record, counsel’s brief, and counsel’s motion to
withdraw, and the Court has found nothing that would arguably support an appeal. See
id. at 827–28 (“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, the Court affirms the trial court’s judgment.
2 The Court previously issued an order on July 8, 2014 directing appointed counsel to provide
appellant with a form motion for pro se access to the appellate record. However, counsel has filed an
amended Anders brief informing the Court that he has already provided appellant with an actual copy of
the appellate record on May 2, 2014. Therefore, the Court concludes that the order entered on July 8, 2014
is moot and proceeds to the final disposition of the appeal.
3
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s attorney has asked the 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.) (“[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)). The Court grants
counsel’s motion to withdraw. Within five days of the date of this Court’s opinion, counsel
is ordered to send a copy of this opinion and this Court’s judgment to appellant 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).3
Nora L. Longoria
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
16th day of October, 2014.
3 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 the Court. See TEX. R. APP. P. 68.2. Effective September
1, 2011, any petition for discretionary review must be filed with the Clerk of the Texas Court of Criminal
Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the
requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.
4
Dale Henderson v. State
Combined Opinion