Brandon Michael Stacy v. State ( 2009 )

NUMBER 13-08-00279-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
BRANDON MICHAEL STACY, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court of San Patricio County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Vela
Memorandum Opinion by Justice Garza
Appellant, Brandon Michael Stacy, was charged by indictment with one count of
manslaughter, a second-degree felony.1 See TEX . PENAL CODE. ANN . § 19.04 (Vernon
2003). Stacy pleaded guilty to the offense, and the trial court placed him on ten years’
deferred community supervision with no fine.
1
The punishm ent range for a second-degree felony is “for any term of not m ore than 20 years or less
than 2 years.” T EX . P EN AL C OD E A N N . § 12.33 (Vernon 2003).
On December 14, 2007, the State filed a motion to revoke Stacy’s community
supervision. The State later filed an amended motion to revoke on December 18, 2007.
In the amended motion to revoke, the State alleged that Stacy had violated several terms
and conditions of his community supervision by: (1) assaulting Christopher Flores in
violation of state law; (2) violating curfew; and (3) entering a bar.
On April 11, 2008, the trial court conducted a hearing on the State’s motion to
revoke. Stacy pleaded “not true” to the allegations in the State’s motion to revoke. At the
conclusion of the hearing, the trial court determined that the allegations contained in the
State’s motion to revoke were true. The trial court subsequently revoked Stacy’s
community supervision and sentenced him to twelve years’ incarceration in the Institutional
Division of the Texas Department of Criminal Justice with no fine. In addition, the trial court
certified Stacy’s right to appeal. This appeal ensued.
I. ANDERS BRIEF
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
2
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:
(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.2
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.
2
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.)).
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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.
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.3 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).
DORI CONTRERAS GARZA,
Justice
Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 12th day of March, 2009.
3
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.
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