Opinion issued April 14, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-01034-CR
———————————
TELLY J. SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from 230th District Court
Harris County, Texas
Trial Court Cause No. 1413462
MEMORANDUM OPINION
Appellant, Telly J. Smith, pleaded guilty to the first-degree felony offense of
aggregate theft—over $200,000—without an agreed recommendation as to
punishment, pending a pre-sentence investigation report. See TEX. PENAL CODE
ANN. §§ 31.03(a), (e)(7), 31.09 (West Supp. 2015). Following a pre-sentence
investigation and hearing, the trial court assessed appellant’s punishment at fifty-five
years’ confinement on December 22, 2014. This sentence is within the applicable
sentencing range. See id. § 12.32(a) (West Supp. 2015). The trial court certified
that this was not a plea-bargain case, and that appellant had the right of appeal. See
TEX. R. APP. P. 25.2(a)(2). Appellant timely filed a notice of appeal.
Appellant’s appointed counsel on appeal has filed a motion to withdraw, along
with an Anders brief stating that the record presents no reversible error and that,
therefore, the appeal is without merit and is frivolous. See Anders v. California, 386
U.S. 738, 87 S. Ct. 1396 (1967). Counsel’s brief meets the Anders requirements by
presenting a professional evaluation of the record and supplying this Court with
references to the record and legal authority. See id. at 744, 87 S. Ct. at 1400; see
also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates
that he has thoroughly reviewed the record and that he is unable to advance any
grounds of error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at
1400; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006,
no pet.).
Appellant’s counsel has informed us that he has delivered a copy of the motion
to withdraw and Anders brief to appellant and informed him of his right to file a
response and to access the record. See In re Schulman, 252 S.W.3d 403, 408 (Tex.
Crim. App. 2008). Furthermore, a copy of the record has been sent to appellant for
2
review. See Kelly v. State, 436 S.W.3d 313, 322 (Tex. Crim. App. 2014). Appellant
timely filed a pro se Anders response, styled as a “Motion to Object to Counsel’s
[Motion to] Withdraw as Attorney of Record.”
We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, that there are no arguable
grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S.
at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—
determines, after full examination of proceedings, whether appeal is wholly
frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing
court must determine whether arguable grounds for review exist); Bledsoe v. State,
178 S.W.3d 824, 826–28 (Tex. Crim. App. 2005) (reviewing court is not to address
merits of each claim raised in Anders brief or pro se response after determining there
are no arguable grounds for review); Mitchell, 193 S.W.3d at 155. An appellant may
challenge a holding that there are no arguable grounds for appeal by filing a petition
for discretionary review in the Texas Court of Criminal Appeals. See Bledsoe, 178
S.W.3d at 827 n.6.
3
CONCLUSION
Accordingly, we affirm the judgment of the trial court and grant counsel’s
motion to withdraw. See TEX. R. APP. P. 43.2(a).1 Attorney Brian M. Middleton
must immediately send the required notice and file a copy of that notice with the
Clerk of this Court. See TEX. R. APP. P. 6.5(c). We dismiss any other pending
motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Keyes and Higley.
Do not publish. TEX. R. APP. P. 47.2(b).
1
Appointed counsel still has a duty to inform appellant of the result of this appeal
and that he may, on his own, pursue discretionary review in the Texas Court of
Criminal Appeals. See Bledsoe, 178 S.W.3d at 826–27.
4