NUMBERS 13-12-00011-CR & 13-12-00012-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
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 JusticeCInstitutional 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was revoked, and he was sentenced to ten years= imprisonment in the Texas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 JusticeCInstitutional 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 JusticeCInstitutional 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his community supervision was revoked, and he was sentenced to ten years=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 JusticeCInstitutional 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
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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) (AIn 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.1 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.
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The Texas Court of Criminal Appeals has held that Athe 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.)).
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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) (ADue 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 A[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
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appellant of his right to file a petition for discretionary review. 2 See TEX. R. APP. P. 48.4.
__________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P.47.2 (b).
Delivered and filed the
5th day of September, 2013.
2
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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