NUMBER 13-11-00201-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JIMMY EVANS GORE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 252nd District Court
of Jefferson County, Texas.
MEMORANDUM OPINION1
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Rodriguez
Appellant Jimmy Evans Gore appeals from his conviction for the offense of
aggravated robbery. See TEX. PENAL CODE ANN. ' 29.03 (West 2003). On November 5,
1
We withdraw our opinion and judgment of July 28, 2011, and substitute the following.
2007, the trial court assessed appellant's punishment at ten years' deferred adjudication
probation. On February 14, 2011, at a revocation hearing, appellant pleaded true to four
probation violations. The trial court accepted appellant's pleas of true, revoked his
unadjudicated probation, found appellant guilty of the offense of aggravated robbery,
sentenced him to twenty-five years' confinement in prison, and granted appellant credit
toward his sentence for all time to which he was entitled by law.
Concluding that "there are no grounds upon which an appeal can be predicated,"
counsel filed an Anders brief in which he reviewed the merits, or lack thereof, of the
appeal. We affirm the judgment of the trial court.
I. COMPLIANCE WITH ANDERS
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 he has
diligently reviewed the entire appellate record and has concluded that an appeal from the
judgment and sentence is without merit and frivolous because the record reflects no
reversible error. Counsel=s brief sets out, in great detail, relevant portions of the record
that may provide potentially appealable issues. See In re Schulman, 252 S.W.3d 403,
407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (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)
(en banc).
2
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 is no error in the trial court's judgment and why there are no issues for appeal.
Counsel certified to this Court that he served a copy of his motion to withdraw, its
supporting brief, and other required notices to appellant by certified mail and that he has
informed appellant of his right to review the record and to file a pro se response. 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.
II. PRO SE RESPONSE
Appellant filed a pro se response.2 He identified the following grounds in his
response: (1) deprivation of rights under color of law, the constitution, and the code of
judicial conduct; (2) substantive and procedural due process violations; (3) legally and
factually insufficient evidence to support the charge; (4) ineffective assistance of counsel.
III. INDEPENDENT REVIEW
Upon receiving an Anders brief, this Court must conduct a full examination of all
proceedings to determine whether the case 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 we have found nothing that would arguably support an appeal.3 See
2
Appellant filed a pro se response with the District Clerk in Beaumont, Texas. Appellant informed
this Court of his mistake, and upon request, the District Clerk forwarded appellant's response to us.
Having now reviewed appellant's pro se response, we dismiss appellant's motion to consider his pro se
response as moot.
3
Although appellant's attempt at a direct appeal has been unsuccessful, he is not without a
potential remedy. Challenges requiring development of a record to substantiate a claim such as ineffective
assistance of counsel may be raised in an application for writ of habeas corpus. See TEX. CODE CRIM.
PROC. ANN. art. 11.07 (West Supp. 2011); see, e.g., Cooper v. State, 45 S.W.3d 77, 82-83 (Tex. Crim. App.
3
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.
IV. 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 the judgments to appellant and to
advise appellant of his right to file a petition for discretionary review. 4 See TEX. R. APP. P.
2001) (suggesting that "the legislature may have regarded challenges to voluntariness as better raised in
habeas corpus than on appeal because the appellate record will often contain insufficient grounds for a fair
resolution of the claim. The legislature may well have decided to render the issue unappealable but only
as a means of encouraging its litigation in habeas corpus, where a new and more complete record can be
developed"). 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).
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 within thirty days from the date of either this opinion or the last timely motion for rehearing that
was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed
with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals. See TEX. R. APP. P.
4
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).
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 25th
day of August, 2011.
68.3; 68.7. 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.
5
Jimmy Evans Gore v. State
Combined Opinion