Andrew James Evans v. State

• Court: Court of Appeals of Texas
• Decided: November 21, 2018
• Docket: 10-18-00244-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-18-00244-CR

ANDREW JAMES EVANS, Appellant v.

THE STATE OF TEXAS, Appellee

From the 440th District Court Coryell County, Texas Trial Court No. 18-24599

MEMORANDUM OPINION

In an open plea before the trial court, Andrew James Evans pled guilty to and was

convicted of the failure to register as a sex offender with a previous conviction. See TEX.

CODE CRIM. PROC. ANN. art. 62.102(c) (West 2018). After a sentencing hearing, Evans was

sentenced to 5 years in prison.

Evans’s appellate attorney filed a motion to withdraw and an Anders brief in

support of the motion to withdraw, asserting that the appeal presents no issues of

arguable merit. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Counsel advised Evans that counsel had filed the motion and brief pursuant to Anders,

advised Evans of his right to review the record, and advised Evans of his right to submit

a response on his own behalf. Evans did not submit a response.

Counsel asserts in the Anders brief that counsel has made a thorough review of the

entire record, including the plea admonishments, the indictment, the assistance of

counsel, the sufficiency of the evidence, and the punishment assessed. After the review,

counsel concludes there is no non-frivolous issue to raise in this appeal. 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 403,

407 (Tex. Crim. App. 2008).

Upon the filing of an Anders brief, as the reviewing appellate court, it is our duty

to independently examine the record to decide whether counsel is correct in determining

that an appeal is frivolous. See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503,

511 (Tex. Crim. App. 1991). Arguments are frivolous when they "cannot conceivably

persuade the court." McCoy v. Court of Appeals, 486 U.S. 429, 436, 108 S. Ct. 1895, 100 L.

Ed. 2d 440 (1988).

Having carefully reviewed the entire record, we have determined that this appeal

is frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).

Accordingly, we affirm the trial court’s Judgment of Conviction by Court—Waiver of

Evans v. State Page 2 Jury Trial signed on June 25, 2018.

Should Evans 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. No substitute counsel will be

appointed. Any petition for discretionary review must be filed within thirty days from

the date of this opinion or the last timely motion for rehearing or timely motion for en

banc reconsideration has been overruled by this Court. See TEX. R. APP. P. 68.2. Any

petition and all copies of the petition for discretionary review must be filed with the Clerk

of the Court of Criminal Appeals. 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 at 409 n.22.

Counsel's motion to withdraw from representation of Evans is granted, and

counsel is discharged from representing Evans. Notwithstanding counsel’s discharge,

counsel must send Evans a copy of our decision, notify him 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

Evans v. State Page 3 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed November 21, 2018 Do not publish [CR25]

Evans v. State Page 4