Marvin Dale Herring Jr. v. the State of Texas ( 2023 )

NUMBER 13-22-00163-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MARVIN DALE HERRING JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 52nd District Court
of Coryell County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Tijerina
Appellant Marvin Dale Herring Jr. pleaded guilty to driving while intoxicated and
was placed on community supervision for seven years. 1 The State filed a motion to
1 The driving while intoxicated offense was enhanced to a third-degree felony because the trial
court found that appellant was twice previously convicted of driving while intoxicated. See TEX. PENAL CODE
ANN. § 49.09(b)(2).
revoke, and at the hearing, appellant pleaded “true” to the allegations in the motion. The
trial court revoked appellant’s community supervision and sentenced him to eight years’
imprisonment. See TEX. PENAL CODE ANN. § 49.09(b). Appellant’s court-appointed
counsel has filed an Anders brief stating that there are no arguable grounds for appeal.
See Anders v. California, 386 U.S. 738, 744 (1967). We affirm the trial court’s judgment.
I. ANDERS BRIEF2
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
filed a brief and a motion to withdraw with this Court, stating that his review of the record
yielded no grounds of reversible error upon which an appeal could 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, 406 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“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, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014),
appellant’s counsel carefully discussed why, under controlling authority, there is no
2 This appeal was transferred to this Court from the Tenth Court of Appeals in Waco by order of
the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (granting the supreme court the authority
to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer).
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reversible error in the trial court’s judgment. Appellant’s counsel also informed this Court
in writing that he: (1) notified appellant that counsel has filed an Anders brief and a motion
to withdraw; (2) provided appellant with copies of both pleadings; (3) informed appellant
of his rights to file pro se responses, to review the record prior to filing those responses,
and to seek discretionary review if we conclude that the appeal is frivolous; and (4)
provided appellant with a copy of the appellate record. 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 408–09. Appellant
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). We have reviewed the record and counsel’s brief, and we have found
nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824,
827–28 (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 requirements of Texas Rule
of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 511.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s counsel has asked this Court for
permission to withdraw as counsel. See Anders, 386 U.S. at 744; see also In re
Schulman, 252 S.W.3d at 408 n.17. We grant counsel’s motion to withdraw. Within five
days from the date of this Court’s opinion, counsel is ordered to send a copy of this opinion
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and this Court’s judgment to appellant and to 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 at412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
IV. CONCLUSION
We affirm the trial court’s judgment.
JAIME TIJERINA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
25th day of May, 2023.
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.
Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate
Procedure 68.4. See id. R. 68.4.
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