NUMBERS 13-17-00068-CR &
13-17-00069-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DAVID TYRONE THOMAS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Kleberg County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Benavides
Memorandum Opinion by Chief Justice Valdez
Appellant David Tyrone Thomas was charged by indictment with tampering with
evidence and evading arrest. See TEX. PENAL CODE ANN. §§ 37.09, 38.04 (West, Westlaw
through 2017 1st C.S.). The State’s indictment further alleged that Thomas was a habitual
felony offender, having been previously convicted of three felony offenses: (1)
possession of a controlled substance, (2) possession with intent to distribute cocaine, and
(3) attempted sexual assault. See id. § 12.42. Thomas pleaded guilty to the charged
offenses and pleaded true to the three prior felony convictions alleged in the State’s
indictment. The trial court accepted Thomas’s pleas, deferred an adjudication of guilt,
and placed him on community supervision for eight years.
Thereafter, the State filed a motion to revoke community supervision and to
adjudicate guilt in both cases. The State’s motion to revoke alleged that Thomas engaged
in the following conduct in violation of the conditions of his community supervision: (1)
“[he] committed the offense of Public Intoxication on or about August 17, 2016 in Kleberg
County, Texas, in violation of Condition H of [c]ommunity [s]upervision”; (2) [he] failed to
report within 48 hours, the arrest on August 17, 2016 to the Supervision Officer, in
violation of Condition N-10 of community supervision”; (3) “[he] failed to observe a daily
curfew from 9:00 pm to 6:00 am and was arrested at 11:00 pm on August 17, 2016 in
violation of Condition N2 of [c]ommunity [s]upervision”; and (4) “[he] failed to abide by
zero tolerance supervision in violation of condition R of community supervision.”
Thomas pleaded true to all four allegations in the State’s motion to revoke, and the
trial court revoked Thomas’s community supervision. The trial court then sentenced him
as a habitual felony offender to twenty-five years in prison for tampering with evidence
and twenty years in prison for evading arrest. See id. The trial court ordered that the
sentences run concurrently. These appeals followed.
Thomas’s court-appointed counsel has filed an Anders brief. See Anders v.
California, 386 U.S. 738, 744 (1967). We affirm.
2
I. ANDERS BRIEF
Pursuant to Anders v. California, Thomas’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 reversible 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) (orig. proceeding) (“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, 319–22 (Tex. Crim. App. 2014), Thomas’s
counsel carefully discussed why, under controlling authority, there is no reversible error
in the trial court’s judgment. Thomas’s counsel has also informed this Court that counsel
has (1) notified him that counsel has filed an Anders brief and a motion to withdraw; (2)
provided him with copies of both pleadings; (3) informed him of his rights to file a pro se
response, to review the record preparatory to filing that response, and to seek
discretionary review in the Texas Court of Criminal Appeals if this Court finds that the
appeal is frivolous; and (4) provided him with a form motion for pro se access to the
appellate record with instructions to file the motion in this Court. See Anders, 386 U.S.
at 744; Kelly, 436 S.W.3d at 319–20, Stafford, 813 S.W.2d at 510 n.3; see also In re
3
Schulman, 252 S.W.3d at 409 n.23. Thomas has filed a pro se response raising
seventeen issues.1 The State has filed a reply to Thomas’s pro se response.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief and an appellant’s pro se response, 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). After reviewing the entire record,
Thomas’s counsel’s Anders brief, Thomas’s pro se response, and the State’s reply to
Thomas’s response, we find 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.
Accordingly, we affirm the judgment of the trial court.
III. MOTION TO WITHDRAW
In accordance with Anders, Thomas’s attorney has asked this Court for permission
to withdraw as counsel. See Anders, 386 U.S. at 744; see also In re Schulman, 252
1 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 403, 409 n.23 (Tex. Crim. App. 2008)
(orig. proceeding) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
The seventeen issues, which we take directly from Thomas’s pro se response, are as follows: (1) “the
reporter’s record shows error”; (2) the habitual felony offender statute violates the Eighth Amendment to
the United States Constitution; (3) “pretrial motions filed by [Thomas] raised issues of due process”; (4)
“insufficient evidence to support conviction/information of revoke”; (5) “fatally defective indictment”; (6)
“original plea was not supported by sufficient evidence”; (7) “ineffective assistance of counsel”; (8)
“void/invalid enhancements”; (9) “void/invalid sentence/conviction”; (10) “wrongful statu[t]es”; (11) “violation
of civil rights”; (12) “court failed to assist in discovery, providing inadmissible evidence”; (13) “prosecution
overzealous”; (14) “out of time indictment”; (15) “unjustified revocation for mentally impaired”; (16) “wrongful
testimony”; and (17) “assassination of character.”
4
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 Thomas and to advise him of his right to file a petition
for discretionary review.2 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).
/s/ Rogelio Valdez
Rogelio Valdez
Chief Justice
Do Not Publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
28th day of December, 2017.
2 No substitute counsel will be appointed. If Thomas seeks 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. A petition for discretionary
review must be filed with the clerk of the Court of Criminal Appeals. See id. R. 68.3. Any petition for
discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See
id. R. 68.4.
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David Tyrone Thomas v. State
Combined Opinion