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 2011-06

Cynthia Gail Shepard v. State ( 2011 )


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  •                                      NO. 12-09-00351-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CYNTHIA GAIL SHEPARD,                                   §             APPEAL FROM THE 173RD
APPELLANT
V.                                                      §             JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE                                                §             HENDERSON COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Cynthia Gail Shepard appeals her conviction for indecency with a child. Appellant’s
counsel has filed a brief asserting compliance with Anders v. California,
    386 U.S. 738
    ,
    87 S. Ct. 1396
    ,
    18 L. Ed. 2d 493 
    (1967) and Gainous v. State,
    436 S.W.2d 137 
    (Tex. Crim. App. 1969).
We dismiss the appeal.
BACKGROUND
A Henderson County grand jury returned an indictment against Appellant alleging in two
counts that she committed the felony offense of indecency with a child.1                     Appellant pleaded
guilty to the first count, a second degree felony, and the State agreed to abandon the second count.2
Appellant elected to have a jury assess her sentence. After a trial, the jury found her guilty
and assessed punishment at imprisonment for fifteen years. This appeal followed.
1
See TEX. PENAL CODE ANN. § 21.11 (Vernon Supp. 2011).
2
In the first count, the grand jury alleged that Appellant committed indecency with a child by engaging in
sexual contact with the child. See
    id. § 21.11(a)(1). 
    1
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant=s counsel has filed a brief in compliance with Anders and Gainous. Counsel
states that he has diligently reviewed the appellate record and that he is well acquainted with the
facts of this case. In compliance with Anders, Gainous, and High v. State,
    573 S.W.2d 807 
    (Tex.
Crim. App. 1978), counsel’s brief presents a thorough chronological summary of the procedural
history of the case and further states that counsel is unable to present any arguable issues for
appeal.3 See
    Anders, 386 U.S. at 745
    , 87 S. Ct. at 1400; see also Penson v. Ohio,
    488 U.S. 75
    , 80,
    109 S. Ct. 346
    , 350,
    102 L. Ed. 2d 300 
    (1988).
We have considered counsel’s brief and have conducted our own independent review of
the record. We found no reversible error. See Bledsoe v. State,
    178 S.W.3d 824
    , 826-27 (Tex.
Crim. App. 2005).
CONCLUSION
As required, Appellant’s counsel has moved for leave to withdraw. See In re Schulman,
    252 S.W.3d 403
    , 407 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State,
    813 S.W.2d 503
    , 511 (Tex. Crim. App. 1991). We are in agreement with Appellant’s counsel that the appeal
is wholly frivolous. Accordingly, his motion for leave to withdraw is hereby granted, and we
dismiss this appeal. See In re
    Schulman, 252 S.W.3d at 408B
    09 (“After the completion of these
four steps, the court of appeals will either agree that the appeal is wholly frivolous, grant the
attorney=s motion to withdraw, and dismiss the appeal, or it will determine that there may be
plausible grounds for appeal.”).
Counsel has a duty to, within five days of the date of this opinion, send a copy of the
opinion and judgment to Appellant and advise him of his right to file a petition for discretionary
review. See TEX. R. APP. P. 48.4; In re
    Schulman, 252 S.W.3d at 411 
    n.35. 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 he must file a pro se petition for
discretionary review.         See In re
    Schulman, 252 S.W.3d at 408 
    n.22.                        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 that was overruled by this court. See TEX. R. APP. P. 68.2. Any
3
Counsel for Appellant states in his motion to withdraw that he provided Appellant with a copy of this brief.
Appellant was given time to file her own brief in this cause. The time for filing such a brief has expired, and we have
received no pro se brief.
2
petition for discretionary review must be filed with this court, after which it will be forwarded to
the Texas Court of Criminal Appeals along with the rest of the filings in this case. See TEX. R.
APP. P. 68.3. 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; In re
    Schulman, 252 S.W.3d at 408 
    n.22.
Opinion delivered June 30, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
3