NUMBERS 13-09-00672-CR &
13-09-00673-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
VERNON HEMPHILL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 117th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Perkes
Memorandum Opinion by Chief Justice Valdez
In appellate cause number 13-09-00672-CR, appellant, Vernon Hemphill, was
charged by information with unlawful possession of less than one gram of a controlled
substance, a state-jail felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a)-(b)
(Vernon 2010). In appellate cause number 13-09-00673-CR, Hemphill was charged by
indictment with unlawful possession of a controlled substance with intent to deliver, a
second-degree felony. See id. § 481.112(a), (c) (Vernon 2010). Pursuant to
agreements with the State, Hemphill pleaded “guilty” to: (1) the offense of unlawful
possession of less than one gram of a controlled substance in appellate cause number
13-09-00672-CR; and (2) the lesser-included offense of unlawful possession of more
than one gram but less than four grams of a controlled substance, a third-degree felony,
in appellate cause number 13-09-00673-CR. See id. § 481.115(a), (c). The trial court
accepted Hemphill’s pleas, sentenced him to two years’ confinement in appellate cause
number 13-09-00672-CR and seven years’ confinement in appellate cause number 13-
09-00673-CR, suspended the sentences, and placed him on community supervision for
a period of four years.
While Hemphill was on community supervision, the State filed a motion to revoke
Hemphill’s community supervision in both cause numbers, alleging that he had violated
several provisions of his community supervision.1 Hemphill pleaded “true” to all of the
allegations contained in the State’s motions to revoke. The trial court accepted
Hemphill’s pleas and revoked his community supervision. The trial court sentenced
Hemphill to: (1) a two-year term of confinement and ordered him to pay $120 in court
costs in appellate cause number 13-09-00672-CR; and (2) seven years’ confinement in
the Institutional Division of the Texas Department of Criminal Justice and ordered him to
pay $120 in court costs in appellate cause number 13-09-00673-CR. The sentences
imposed in the two cases were ordered to run concurrently with one another. Hemphill
1
In its motions to revoke, the State alleged that Hemphill violated his community supervision by
failing to complete his outpatient substance abuse aftercare program and testing positive for, among
other things, tetrahydrocannabinol and cocaine.
2
subsequently filed motions for new trial in both cases, which were overruled by
operation of law. See TEX. R. APP. P. 21.8(a), (c). These appeals followed.2
Hemphill’s appellate counsel, concluding that there are Ano arguable grounds for
reversal,@ filed an Anders brief in each case, in which he reviewed the merits, or lack
thereof, of the appeals. We affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), Hemphill’s
court-appointed appellate counsel has filed briefs with this Court, stating that his review
of the record yielded no grounds or error upon which an appeal in either cause number
can be predicated. Although counsel=s briefs do 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 in either 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.BCorpus
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), Hemphill’s counsel has carefully discussed why, under controlling authority,
2
In appellate cause number 13-09-00672-CR, the trial court, on November 3, 2009, noted that
Hemphill had waived his right to appeal his conviction and sentence. However, in appellate cause
number 13-09-00673-CR, the trial court, on September 3, 2008, certified Hemphill’s right to appeal.
Given these certifications, Hemphill’s appellate counsel filed motions with this Court, which were carried
with the cases, requesting that we permit him to appeal his conviction and sentence in both appellate
cause numbers. At this time, we GRANT Hemphill’s motions to permit appeals in both cases.
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there are no errors in the trial court's judgments. Counsel has informed this Court that
he has: (1) examined the record and found no arguable grounds to advance in either
appeal, (2) served a copy of the briefs and counsel=s motions to withdraw on Hemphill,
and (3) informed Hemphill of his right to review the record and to file a pro se response
in both matters.3 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 Hemphill has not filed a pro se response in either case. See In re
Schulman, 252 S.W.3d at 409.
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 briefs and have
found nothing that would arguably support an appeal in either matter. 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 judgments of the trial court.
III. MOTION TO WITHDRAW
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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.BWaco 1997, no pet.)).
4
In accordance with Anders, Hemphill’s attorney has asked this Court for
permission to withdraw as counsel in both cases. 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.BDallas 1995, no pet.) (AIf 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
motions 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 in each case to Hemphill and
advise him of his right to file petitions for discretionary review.4 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).
_________________
ROGELIO VALDEZ
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
27th day of January, 2011.
4
No substitute counsel will be appointed. Should Hemphill wish to seek further review of these
cases by the Texas Court of Criminal Appeals, he must either retain an attorney to file petitions for
discretionary review or file pro se petitions 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. 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.
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