NUMBER 13-09-007-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CLIFFORD KING, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court of
Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Yañez and Garza
Memorandum Opinion by Justice Yañez
Pursuant to a plea agreement, appellant, Clifford King, pleaded guilty to aggravated assault, a second-degree felony, (1) and was placed on deferred-adjudication community supervision for five years. (2) The State filed a motion to revoke appellant's community supervision, alleging multiple violations of the terms of community supervision. Appellant pleaded "true" to several of the allegations. The trial court revoked appellant's community supervision, adjudicated him guilty of the underlying offense, and sentenced him to five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. The trial court certified appellant's right to appeal, and this appeal followed. We affirm.
I. Anders BriefPursuant 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 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. (3)
In compliance with High v. State, (4) 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. (5) More than an adequate period of time has passed, and appellant has not filed a pro se response. (6) 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. (7) We have reviewed the entire record and counsel's brief and have found nothing that would arguably support an appeal. (8) Accordingly, we affirm the judgment of the trial court in each case.
III. Motion to Withdraw
In accordance with Anders, appellant's attorney has asked this Court for permission to withdraw as counsel for appellant. (9) 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 appellant of his right to file a petition for discretionary review. (10)
Do not publish.
Tex. R. App. P. 47.2(b).
Delivered and filed the
19th day of August, 2010.
1. See Tex. Penal Code Ann. § 22.02(a)(2), (b) (Vernon Supp. 2009).
2. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 2009).
3. 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).
4. High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978).
5. 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. The Texas Court of Criminal Appeals has held that "the 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 at 409 n.23 (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.-Waco 1997, no pet.)).
6. See In re Schulman, 252 S.W.3d at 409 n.23.
7. Penson v. Ohio, 488 U.S. 75, 80 (1988).
8. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005) ("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.
9. 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 "[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)).
10. 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). 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. 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.