Alonzo Dewayne Marshall AKA Alonza Dewayne Marxhall v. State

• Court: Court of Appeals of Texas
• Decided: August 11, 2011
• Docket: 13-11-00045-CR
• Status: Published

Opinion

NUMBER 13-11-00045-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ALONZO DEWAYNE MARSHALL

AKA ALONZO DEWAYNE MARXHALL,                                   Appellant,

v.

THE STATE OF TEXAS,                                                                Appellee.

On appeal from the 252nd District Court

of Jefferson County, Texas.

MEMORANDUM OPINION[1]

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Garza

            On April 21, 2008, pursuant to a plea bargain, appellant Alonzo Dewayne Marshall aka Alonzo Dewayne Marxhall pleaded guilty to possession of a controlled substance, less than one gram of cocaine, a state jail felony.  See Tex. Health & Safety Code Ann. § 481.115(a), (b) (West 2010).  The trial court sentenced appellant to two years’ imprisonment in the Texas Department of Criminal Justice—State Jail Division, suspended the sentence, placed appellant on community supervision for five years, and assessed a $2,500 fine.  See Tex. Penal Code Ann. § 12.35 (West Supp. 2010).  On November 18, 2010, the State filed a motion to revoke probation, alleging that appellant violated conditions of his community supervision, including possession of cocaine and possession of marijuana in a drug-free zone.  Appellant pleaded “not true” to the State’s allegations.  Following a hearing on December 1, 2010, the trial court found the State’s allegation of cocaine possession “true,” revoked appellant’s community supervision, and sentenced appellant to twelve months’ confinement in a state jail facility.  See id. 

I.  Anders Brief

            Appellant’s appellate counsel has filed a motion to withdraw and a brief in support thereof in which he states that he has diligently reviewed the entire record and has concluded that there is no reversible error.  See Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978).  Counsel has informed this Court that he has (1) examined the record and has found no arguable grounds to advance on appeal, (2) served copies of the brief and motion to withdraw on appellant, and (3) informed appellant of his right to review the record and to file a pro se response.[2]  See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).  More than an adequate time has passed, and no pro se response has been filed.  See In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008). 

II.  Independent Review

Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the appeal is wholly frivolous.  Penson v. Ohio, 488 U.S. 75, 80 (1988).  We have reviewed the entire record and counsel’s brief, and find that the appeal is wholly frivolous and without merit.  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 it considered the issues raised in the brief 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 509.  Accordingly, we affirm the judgment of the trial court.

III.  Motion to Withdraw

            In accordance with Anders, appellant’s counsel has filed a motion to withdraw as appellate counsel.  See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex. App.—Dallas 1995, no pet.) (“If 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.”) (citations omitted)).  We grant the motion to withdraw.

            We order that counsel must, 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.[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).

DORI CONTRERAS GARZA

Justice

Do not publish.

Tex. R. App. P. 47.2(b)

Delivered and filed the

11th day of August, 2011.

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[1] This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to an order issued by the Supreme Court of Texas.  See Tex. Gov’t Code Ann. § 73.001 (West 2005).

^[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.”  In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)).

^[3] No substitute counsel will be appointed.  Should appellant wish to seek further review 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 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.  See Tex. R. App. P. 68.3, 68.7.  Any petition for discretionary review must comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 68.4.