Michael Anshun Walker v. State ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00022-CR
MICHAEL ANSHUN WALKER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 13th District Court
Navarro County, Texas
Trial Court No. 30597
MEMORANDUM OPINION
Michael Anshun Walker was convicted of possession of a controlled substance
with the intent to deliver, within a drug-free zone. TEX. HEALTH & SAFETY CODE ANN. §§
481.112(a), (d); 481.134(c) (Vernon 2010). He was sentenced to 65 years in prison and
assessed a $10,000 fine. We affirm.
Walker’s appellate counsel filed an Anders brief and a motion to withdraw as
counsel. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
Counsel concludes that the appeal is frivolous. Walker was informed of the right to file
a pro se response to his counsel’s Anders brief. Walker attempted to file a response;
however, it was not properly served. Walker was given an opportunity to correct that
deficiency but did not do so. Because Walker did not provide proper proof of service,
his response was stricken.
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 an Anders appeal, 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 reviewing the brief and the entire record in this appeal, we determine the
appeal to be wholly frivolous. See Bledsoe v. State, 178 S.W.3d at 826-27. Accordingly,
we affirm the trial court's judgment.
Should Walker wish to seek further review of this case by the Texas Court of
Criminal Appeals, Walker must either retain an attorney to file a petition for
discretionary review or Walker must file a pro se petition for discretionary review. Any
Walker v. State Page 2
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 also 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 she be allowed to withdraw from representation of Walker
is granted. Additionally, counsel must send Walker a copy of our decision, notify
Walker of his right to file a pro se petition 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 also In re Schulman, 252 S.W.3d at 409 n. 22.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed August 25, 2010
Do not publish
[CR25]
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