IN THE
TENTH COURT OF APPEALS
No. 10-15-00409-CR
JOSHUA MARQUES WILLIS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2012-1058-C1
MEMORANDUM OPINION
Joshua Marques Willis was convicted of possession of a controlled substance, over
four grams and under 200 grams, with the intent to deliver, enhanced. See TEX. HEALTH
& SAFETY CODE ANN. § 481.112(a) (West 2010); TEX. PENAL CODE ANN. § 12.42(c)(1) (West
2011). He was sentenced to life in prison, and that sentence was stacked on a prior
robbery conviction and sentence of 60 years. See TEX. CODE CRIM. PROC. ANN. art. 42.08(a)
(West 2006).
Willis’s appellate attorney filed an Anders brief in this appeal. See Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Willis was given a copy of
the record by counsel and was informed of his right to submit a response on his own
behalf. Willis submitted his own response. The State did not respond.1
Counsel asserts in the Anders brief that counsel reviewed the appellate record,
including the indictment, pretrial motions, jury selection, any objections made, the
verdict, sentence and punishment, the jury instruction, and the judgment. Counsel also
reviewed the sufficiency of the evidence to support the conviction and any unobjected to
error that might rise to the level of fundamental error. Counsel concludes that counsel
is unable to find any non-frivolous error.2
Counsel's brief evidences a professional evaluation of the record for error, and we
conclude that counsel performed the duties required of appointed counsel. See Anders,
386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also In re
Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008).
In his response, Willis asserts that: 1) the evidence was insufficient to prove he
possessed the type of cocaine that was illegal to possess; 2) the trial court abused its
discretion by allowing the State to violate Rules 403, 404(b), 405, and 406 of the Texas
Rules of Civil Procedure; 3) the trial court abused its discretion when it deprived the jury
of the ability to have an officer’s testimony read back to them; 4) the jury foreman
1
See Wilson v. State, 955 S.W.2d 693, 697 (Tex. App.—Waco 1997, order).
2
Despite this conclusion, we note that counsel has pointed out an alleged clerical error that counsel believes
should be corrected. Counsel contends the judgment incorrectly shows that the jury assessed punishment
when the court assessed punishment. The judgment specifically states: “Punishment Assessed by:
COURT.” Thus, nothing needs to be corrected.
Willis v. State Page 2
committed misconduct by not following the court’s instructions to be able to have the
officer’s testimony read back to the jury; 5) trial counsel was ineffective for not trying to
exclude an officer’s testimony and report; 6) trial counsel was ineffective for failing to
make proper objections; 7) trial counsel was ineffective for the failure to prepare a defense
for not guilty rather than for a defense of the lesser included offense; 8) the evidence was
insufficient to prove possession of over four grams of cocaine, when the chemist tested
11 grams of cocaine and Willis was charged with possession of 13 grams of cocaine; 9)
the trial court erred in stacking Willis’s sentences; and 10) the trial court committed
reversible error when the jury was instructed to find Willis guilty of general possession
where the State introduced three types of extraneous possessions.
In reviewing an Anders appeal, we must, "after a full examination of all the
proceedings, . . . decide whether the case is wholly frivolous." See Anders, 386 U.S. at 744;
accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is
"wholly frivolous" or "without merit" when it "lacks any basis in law or fact." McCoy v.
Court of Appeals, 486 U.S. 429, 439 n. 10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988).
Arguments are frivolous when they "cannot conceivably persuade the court." Id. at 436.
An appeal is not wholly frivolous when it is based on "arguable grounds." Stafford, 813
S.W.2d at 511.
After reviewing counsel's brief, Willis’s response, and the entire record in this
appeal, we determine the appeal to be wholly frivolous. See Bledsoe v. State, 178 S.W.3d
824, 826-27 (Tex. Crim. App. 2005). Accordingly, we affirm the trial court’s judgment.
Should Willis wish to seek further review of this case by the Texas Court of
Willis v. State Page 3
Criminal Appeals, he must either retain an attorney to file a petition for discretionary
review or must file a pro se petition for discretionary review. Any petition for
discretionary review must be filed within thirty days from the date of this opinion or the
last timely motion for rehearing or timely motion for en banc reconsideration was
overruled by this Court. See TEX. R. APP. P. 68.2. Any petition and all copies of the petition
for discretionary review must be filed with the Clerk of the Court of Criminal Appeals.
See TEX. R. APP. P. 68.3. (Tex. Crim. App. 1997, amended eff. Sept. 1, 2011). 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. See also In re Schulman, 252 S.W.3d
at 409 n.22.
Counsel's motion to withdraw from representation of Willis is granted, and
counsel is permitted to withdraw from representing Willis. Additionally, counsel must
send Willis a copy of our decision, notify him of his right to file a pro se petition for
discretionary review, and send this Court a letter certifying counsel's compliance with
Texas Rule of Appellate Procedure 48.4. TEX. R. APP. P. 48.4; see also In re Schulman, 252
S.W.3d at 409 n.22.
Counsel’s “Motion to Abate Appeal and Remand to Trial Court” is denied.
TOM GRAY
Chief Justice
Willis v. State Page 4
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed October 5, 2016
Do not publish
[CRPM]
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