William Stirling Pick v. State ( 2020 )

NUMBER 13-19-00324-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
WILLIAM STIRLING PICK, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Calhoun County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Tijerina
Memorandum Opinion by Justice Benavides
Appellant William Stirling Pick appeals from the revocation of his 2009 deferred
adjudication community supervision for burglary of a habitation, a second-degree felony.
See TEX. CODE CRIM. PROC. ANN. art. 42A.101; TEX. PENAL CODE ANN. § 30.02(c)(2). After
finding the State’s allegations on counts one through four of the motion to revoke to be
true, 1 the trial court imposed a sentence of twenty years’ imprisonment in the Texas
Department of Criminal Justice–Institutional Division. See TEX. PENAL CODE ANN.
§ 12.33(a). Pick’s court-appointed appellate counsel has filed a motion to withdraw and
an Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm.
I. ANDERS BRIEF
Pursuant to Anders, Pick’s counsel has filed a brief and a motion to withdraw with
this Court, stating that his review of the record yielded no grounds of error upon which an
appeal can be predicated. See id. Counsel’s brief meets the requirements of Anders as it
presents a professional evaluation demonstrating why there are no arguable grounds to
advance 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–Edinburg 2003, no pet.)); Stafford v. State, 813
S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).
In compliance with High v. State and Kelly v. State, Pick’s counsel carefully
discussed why, under controlling authority, there is no reversible error in the trial court’s
judgment. See Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014); High v.
State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). Pick’s counsel also
1
The State alleged in the first four counts: (1) unlawful possession of a firearm by a felon and
possession of a controlled substance of greater than one gram and less than four grams in a drug-free
zone, (2) criminal trespass in Nueces County, (3) inciting a riot in the Calhoun County Adult Detention
Center, and (4) leaving his county of residence without first securing permission in writing from the probation
officer in violation of the terms of his supervision.
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notified this Court that he: (1) informed Pick that he has filed an Anders brief and a motion
to withdraw; (2) provided Pick with copies of both pleadings; (3) informed Pick of his rights
to file a pro se response,2 review the record preparatory to filing that response, and seek
discretionary review if we conclude that the appeal is frivolous; (4) provided Pick with a
copy of the appellate record; and (5) informed Pick that the pro se response, if any, should
identify for the Court those issues which he believes the Court should consider in deciding
whether the case presents any meritorious issues. See Anders, 386 U.S. at 744; Kelly,
436 S.W.3d at 319–20; see also In re Schulman, 252 S.W.3d at 409 n.23. Pick did not
file a pro se response.
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). A court of appeals has two options when an Anders brief is filed. After
reviewing the entire record, it may: (1) determine that the appeal is wholly frivolous and
issue an opinion explaining that it finds no reversible error; or (2) determine that there are
arguable grounds for appeal and remand the case to the trial court for appointment of
new appellate counsel. Kelly, 436 S.W.3d at 319; Bledsoe v. State, 178 S.W.3d 824, 826–
27 (Tex. Crim. App. 2005). If the court finds arguable grounds for appeal, it may not review
those grounds until after new counsel has briefed those issues on appeal. Bledsoe, 178
2
The Texas Court of Criminal Appeals has held that “the pro se response need not comply 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 meritorious issues.” See In re Schulman, 252 S.W.3d 403, 407 n.23 (Tex. Crim. App. 2008)
(quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
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S.W.3d 824 at 827.
We have reviewed the entire record and counsel’s brief; we have found nothing
that would arguably support an appeal. See id. at 827–28 (“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.
There is no reversible error in the record.
III. MOTION TO WITHDRAW
In accordance with Anders, Pick’s counsel 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 (“[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.”) (quoting Jeffery v. State, 903 S.W.2d 776, 779–80
(Tex. App.—Dallas 1995, no pet.)). We grant counsel’s motion to withdraw. Within five
days of this Court’s opinion, counsel is ordered to send a copy of this opinion and this
Court’s judgment to Pick and advise him 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).
3
No substitute counsel will be appointed. 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 file a pro se petition 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 or timely motion
for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for
discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals, see id. R. 68.3 and
should comply with the requirements of the Texas Rule of Appellate Procedure 68.4. See id. R. 68.4.
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IV. CONCLUSION
We affirm the judgment of the trial court.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
5th day of March, 2020.
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