Vance Michael Stubbs v. State ( 2009 )


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  •                            NUMBER 13-08-00702-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI – EDINBURG
    VANCE MICHAEL STUBBS,                                                   Appellant,
    v.
    THE STATE OF TEXAS,                                                      Appellee.
    On appeal from the 24th District Court of DeWitt County, Texas.
    MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Yañez and Benavides
    Memorandum Opinion by Justice Benavides
    Vance Michael Stubbs was indicted for assault on a public servant. TEX . PENAL
    CODE ANN . § 22.01(b) (Vernon 2003). Stubbs pleaded guilty. The trial court sentenced
    him to ten years’ imprisonment, imposed a fine, suspended the sentence, and placed
    Stubbs on community supervision for ten years.
    The State filed a motion to revoke Stubbs’s community supervision for failure to
    comply with the terms of supervision.      Stubbs pleaded “not true” to all violations. A
    hearing was held, and the trial court found that Stubbs had violated his community
    supervision and imposed the original sentence.
    Stubbs’s appellate counsel, concluding that "there are no arguable grounds to be
    advanced on appeal," filed an Anders brief in which he reviewed the merits, or lack thereof,
    of the appeal. We affirm.
    I. DISCUSSION
    A.     Compliance with Anders v. California
    Pursuant 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. 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), 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:
    2
    (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 within thirty days.1
    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. More than an adequate period of time has passed, and appellant
    has not filed a pro se response. See In re 
    Schulman, 252 S.W.3d at 409
    .
    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 have found
    nothing that would arguably support an appeal. 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
    . Accordingly, we affirm the
    judgment of the trial court.
    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 In re
    
    Schulman, 252 S.W.3d at 408
    n.17 (citing Jeffery v. State, 
    903 S.W.2d 776
    , 779-80 (Tex.
    1
    The Texas Court of Crim inal Appeals has held that “the pro se response need not com ply 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 m eritorious issues.” In re Schulman, 252 S.W .3d 403, 409 n.23 (Tex. Crim . App. 2008) (quoting
    W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App.–W aco 1997, no pet.)).
    3
    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)). 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.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).
    __________________________
    GINA M. BENAVIDES,
    Justice
    Do not publish.
    See TEX . R. APP. P. 47.2(b).
    Memorandum Opinion delivered and
    filed this the 20th day of August, 2009.
    2
    No substitute counsel will be appointed. Should appellant wish to seek further review of this case
    by the Texas Court of Crim inal Appeals, he m ust 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 m ust be filed within
    thirty days from the date of either this opinion or the last tim ely m otion for rehearing that was overruled by this
    Court. See T EX . R. A PP . P. 68.2. Any petition for discretionary review m ust be filed with this Court, after which
    it will be forwarded to the Texas Court of Crim inal Appeals. See T EX . R. A PP . P. 68.3; 68.7. Any petition for
    discretionary review should com ply with the requirem ents of Rule 68.4 of the Texas Rules of Appellate
    Procedure. See T EX . R. A PP . P. 68.4.
    4