NUMBERS
13-16-00029-CR
13-16-00030-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
GERALD WAYNE ROBERTS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 21st District Court
of Burleson County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion by Justice Longoria1
1This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through 2015 C.S.).
In May of 2008, appellant Gerald Wayne Roberts was charged in separate
indictments with possession of one to four grams of cocaine within a school zone and
with fabricating or tampering with physical evidence.2 See TEX. HEALTH & SAFETY CODE
ANN. §§ 481.112, 481.134(c) (West, Westlaw through 2015 R.S.); TEX. PENAL CODE ANN.
§ 37.09 (West, Westlaw through 2015 R.S.).
Appellant pled guilty to both charges pursuant to separate plea agreements.
Pursuant to the agreement on the possession charge, the trial court deferred adjudication
and placed appellant on community supervision for eight years. The trial court accepted
appellant’s plea on the tampering charge and imposed a sentence of seven years’
imprisonment. Pursuant to the agreement, the trial court suspended the sentence and
placed appellant on community supervision for seven years.
In October of 2015, the State filed a motion in each case seeking to revoke
appellant’s community supervision for violating its terms and conditions. The State’s
motion in the possession case also sought to adjudicate his guilt. The motions alleged,
among other violations, that appellant had been convicted of committing a robbery while
on supervision, violated the conditions governing his stay in a SAFPF 3 facility by getting
into a fight with another inmate, and failed to pay certain sums of money to the probation
department. Appellant pled “true” to the allegations involving the fight and the failure to
pay but denied the others. Following a hearing, the trial court found all of the allegations
in both motions to be true, revoked appellant’s community supervision, adjudicated
appellant guilty in the possession case, and imposed consecutive sentences of seven
2 The possession charge was assigned trial court cause no. 13,646 and the tampering charge
received trial court cause no. 13,647.
3 “SAFPF” stands for Substance Abuse Felony Punishment Facility.
2
years’ imprisonment. See TEX. HEALTH & SAFETY CODE ANN. § 481.134(h) (West, Westlaw
through 2015 R.S.) (providing that punishment for an offense enhanced for occurring
within a school zone pursuant to this section “may not run concurrently with punishment
for a conviction under any other criminal statute”). This appeal followed.
I. ANDERS BRIEF
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
has filed a brief and a motion to withdraw with this Court, stating that his review of the
record yielded no grounds of error upon which an appeal can be predicated. See id.
Counsel’s brief meets the requirements of Anders as it presents a professional evaluation
demonstrating why there are no arguable grounds to advance on appeal. 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).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014), appellant’s
counsel carefully discussed why, under controlling authority, there is no reversible error
in the trial court's judgment. Counsel has informed this Court, in writing, that counsel has:
(1) notified the appellant that counsel has filed an Anders brief and a motion to withdraw;
(2) informed the appellant of his rights to file a pro se response,4 review the record
4 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
3
preparatory to filing that response, and seek discretionary review if the Court concludes
that the appeal is frivolous; and (3) provided the appellant with a form motion for pro se
access to the appellate record, lacking only the appellant’s signature and the date and
including the mailing address for the court of appeals, with instructions to file the motion
within ten days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319; 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 time has passed, and appellant has not filed a pro se motion for access to the
appellate record or a motion for extension of time to do so. No pro se response was filed,
and the State has also not filed a brief.
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 we have
found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d
824, 827–28 (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. We have found no reversible
error in the record.
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
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.)).
4
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.) (“[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 this opinion and this Court’s judgment to appellant and to advise him of
his right to file a petition for discretionary review. 5 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).
IV. CONCLUSION
We affirm the judgments of the trial court.
NORA L. LONGORIA,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
9th day of June, 2016.
5 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 or timely motion
for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for
discretionary review must be filed with the clerk of the Court of Criminal Appeals and should comply with
the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.3, 68.4.
5