Earl Markeith Henderson v. State ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00397-CR
No. 10-10-00398-CR
No. 10-10-00399-CR
EARL MARKEITH HENDERSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court Nos. 07-06404-CRF-272,
07-06405-CRF-272 and 08-02608-CRF-272
MEMORANDUM OPINION
Earl Henderson pled guilty to the offenses of Aggravated Assault on a Public
Servant, Evading Arrest in a Motor Vehicle (enhanced), Assault on a Public Servant
(two counts), and pled no contest to the offense of Aggravated Robbery. TEX. PEN.
CODE ANN. §§ 22.02, 38.04, 29.03, 22.01 (West Supp. 2010). There was no agreement
regarding punishment. Henderson was sentenced by the trial court to concurrent
sentences of forty years in prison for the aggravated assault, twenty years in prison for
the aggravated robbery, and ten years in prison each for the evading arrest and the two
assaults.
Henderson’s appellate counsel has filed an Anders brief and a motion to
withdraw as counsel.1 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d
493 (1967). Counsel concludes that the appeals are frivolous. Counsel informed
Henderson of the right to file a pro se brief, but Henderson has not done so.
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 at 407.
In reviewing Anders appeals, we must, “after a full examination of all the
proceedings, . . . decide whether the case is wholly frivolous.” Anders at 744; accord
Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991); Coronado v. State, 996
S.W.2d 283, 285 (Tex. App.—Waco 1999, order) (per curiam), disp. on merits, 25 S.W.3d
806 (Tex. App.—Waco 2000, pet. ref’d). 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.” McCoy, 486 U.S. at 436. An appeal is not
wholly frivolous when it is based on “arguable grounds.” Stafford, 813 S.W.2d at 511.
After a review of the briefs and the entire record in these appeals, we determine
that these appeals are wholly frivolous. See Bledsoe v. State, 178 S.W.3d at 826-27.
Accordingly, we affirm the trial court’s judgments.
1 The aggravated assault and the evading charges are the basis of No. 10-10-00397-CR, the aggravated
robbery is the basis of No. 10-10-00398-CR, and the two assaults are the basis of No. 10-10-00399-CR.
These causes were considered by the trial court together and counsel for Henderson submitted one brief
covering all three appeals; therefore, we will also address the appeals jointly.
Henderson v. State Page 2
Should Henderson wish to seek further review of these cases by the Texas Court
of Criminal Appeals, Henderson must either retain an attorney to file petitions for
discretionary review or Henderson must file pro se petitions 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 that was overruled by this
Court. See TEX. R. APP. P. 68.2. Any 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. See In re Schulman, 252 S.W.3d
403, 409 n.22 (Tex. Crim. App. 2008) (citing Glover v. State, No. 06-07-00060-CR, 2007
Tex. App. LEXIS 9162 (Tex. App.—Texarkana, Nov. 20, 2007, pet. ref’d) (not designated
for publication).
Counsel’s request that he be allowed to withdraw from representation of
Henderson is granted. Additionally, counsel must send Henderson a copy of our
decision, remind Henderson of his right to file pro se petitions 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 In re Schulman, 252 S.W.3d at 409 n.
22.
TOM GRAY
Chief Justice
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Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed June 22, 2011
Do not publish
[CRPM]
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