Anthony Charles Merka II v. State

• Court: Court of Appeals of Texas
• Decided: March 14, 2012
• Docket: 10-11-00164-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-11-00164-CR

ANTHONY CHARLES MERKA II, Appellant v.

THE STATE OF TEXAS, Appellee

From the 52nd District Court Coryell County, Texas Trial Court No. FAM-10-20431

MEMORANDUM OPINION

Appellant, Anthony Charles Merka II, was charged by indictment with the

offense of aggravated assault with a deadly weapon, a second-degree felony. See TEX.

PENAL CODE ANN. § 22.02(a)(2), (b) (West 2011). Appellant pleaded “not guilty” to the

charged offense, and a jury trial commenced. At the conclusion of the evidence, the jury

found appellant guilty of the charged offense, concluded that appellant used or

exhibited a deadly weapon in committing the offense, and sentenced him to five years’ incarceration in the Institutional Division of the Texas Department of Criminal Justice. 1

Appellant appeals, and we affirm.

I. ANDERS BRIEF

Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d

493 (1967), 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

error upon which an appeal can be predicated. 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 2003, no pet.)); Stafford v.

State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978), appellant’s counsel has carefully discussed why, under controlling

authority, there are no reversible errors in the trial court’s judgment. Counsel has

informed this Court that he has: (1) examined the record and found no arguable

grounds to advance on appeal; (2) served a copy of the brief and counsel’s motion to

withdraw on appellant; and (3) informed appellant of his right to review the record and

1 The punishment range for a second-degree felony is two to twenty years in prison with an optional fine not to exceed $10,000. See TEX. PENAL CODE ANN. § 12.33 (West 2011).

Merka v. State Page 2 to file a pro se response.2 See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Stafford, 813

S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. More than an adequate

period of time has passed, and appellant has not filed a pro se response. See In re

Schulman, 252 S.W.3d at 409.

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, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988). We have reviewed the entire

record and counsel’s brief and 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 requirement of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813

S.W.2d at 509. Accordingly, the judgment of the trial court is affirmed.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s attorney has asked this Court for

permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744, 87 S. Ct. at

1400; 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,

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.)).

Merka v. State Page 3 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

counsel’s motion to withdraw. Within five days of the date of this Court’s opinion,

counsel is ordered to send a copy of this opinion 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 at 412 n.35; Ex parte Owens, 206 S.W.3d 670,

673 (Tex. Crim. App. 2006).

AL SCOGGINS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed March 14, 2012 Do not publish [CR25]

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 must file a pro se petition for discretionary review. 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 was 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 id. at R. 68.3. Any petition for discretionary review should comply with the requirements of rule 68.4 of the Texas Rules of Appellate Procedure. See id. at R. 68.4; see also In re Schulman, 252 S.W.3d at 409 n.22.

Merka v. State Page 4