NUMBER 13-07-040-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
HAROLD MOTEN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 252nd District Court
of Jefferson County, Texas
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Vela
Memorandum Opinion by Justice Rodriguez
Appellant, Harold Moten, pleaded guilty to aggravated robbery. Tex. Pen. Code Ann. § 29.039(a)(2) (Vernon 2003). Pursuant to a plea agreement that the sentence would not exceed five years and no more than twenty years if the probation was revoked, the trial court placed appellant on probation for five years. In October 2006, appellant pleaded true to an allegation in the State's motion to revoke his probation. The trial court revoked probation, adjudicated appellant guilty, and sentenced appellant to confinement for seven years in the Institutional Division of the Texas Department of Criminal Justice.
Appellant's counsel filed an Anders brief in which he concluded that this appeal is without merit and is frivolous because the record reflects no reversible error. We affirm.
I. Compliance with Anders v. California
Appellant's court-appointed counsel filed an Anders brief after reviewing the record, researching applicable law, and determining that the record presents no meritorious issues. Anders v. California, 386 U.S. 738, 744 (1967). Appellant's counsel's brief meets the requirements of Anders. Id. at 744-45; see High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). In compliance with Anders, counsel presented a professional evaluation of the record. See Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974). Appellant's counsel served a copy of his Anders brief on appellant at the time of its filing. Counsel has notified appellant that: (1) he has reviewed the record and concluded that the appeal is without merit; (2) he has requested to withdraw as counsel; and (3) appellant has the right to request and review the appellate record and to file a pro se brief. See Anders, 386 U.S. at 744-45; see also Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991) (en banc); High, 573 S.W.2d at 813.
II. Pro Se Brief
Appellant filed a pro se brief. By one issue, appellant complains of ineffective assistance of counsel. Appellant argues that counsel was ineffective at his revocation hearing by not interviewing a potential witness and failing to object to evidence of extraneous offenses. (1)
III. Independent Review
The United States Supreme Court advised appellate courts that when we receive a "frivolous appeal" brief we must conduct "a full examination of all of the proceeding[s] to decide whether the case is wholly frivolous." Pension v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.--Corpus Christi 2003, no pet.). Accordingly, we have carefully reviewed the record and considered the issue raised, and we have not found any grounds that would arguably support an appeal. (2) See Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005); Stafford, 813 S.W.2d at 509. We agree with counsel that the appeal is wholly frivolous. See Bledsoe, 178 S.W.3d 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 requirements of Texas Rule of Appellate Procedure 47.1.").
IV. Conclusion
The judgment of the trial court is affirmed. Additionally, counsel's motion to withdraw as appellant's counsel was carried with the case on May 3, 2007. See Anders, 386 U.S. at 744. Having affirmed the judgment, we now grant counsel's motion to withdraw. We order counsel to notify appellant of the disposition of this appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (en banc) (per curiam).
NELDA V. RODRIGUEZ
Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and
filed this 14th day of February, 2008.
1. In his pro se brief, appellant provided only unsupported contentions. Therefore, the briefing is inadequate. See Tex. R. App. P. 38.1(h) (requiring that contentions are supported by clear and concise arguments with appropriate citations to authorities and the record).
2. Although appellant has not prevailed on his direct appeal, a potential remedy is available. Appellant may raise a claim, such as ineffective assistance of counsel, in an application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005); Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006); Ex parte Varelas, 45 S.W.3d 627, 630 (Tex. Crim. App. 2001); Cooper v. State, 45 S.W.3d 77, 82 (Tex. Crim. App. 2001); Ex parte Torres, 943 S.W.2d 469, 476 (Tex. Crim. App. 1997). An application for writ of habeas corpus relief would "provide an opportunity to conduct a dedicated hearing to consider the facts, circumstances, and rationale behind counsel's actions at . . . trial." Thompson v. State, 9 S.W.3d 808, 814-15 (Tex. Crim. App. 1999).