Arthur Kelvin Lovell v. the State of Texas

Opinion

NUMBER 13-21-00115-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ARTHUR KELVIN LOVELL, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 183rd District Court of Harris County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Tijerina Memorandum Opinion by Justice Longoria

Appellant Arthur Kelvin Lovell was convicted of aggravated assault with a deadly

weapon, a second-degree felony. See TEX. PENAL CODE ANN. § 22.02(a)(2). Appellant

pleaded true to an enhancement paragraph in the indictment, increasing the offense level

to a first-degree felony and waived his right to trial. See id. §§ 22.02, 12.32. The trial court

found appellant guilty and sentenced him to forty-five years’ imprisonment in the Correctional Institutions Division of the Texas Department of Criminal Justice. 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. 1

I. ANDERS BRIEF

Pursuant to Anders v. California, appellant’s court-appointed appellate counsel

filed a brief and a motion to withdraw with this Court, stating that her 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

reversible error in the trial court’s judgment. Appellant’s counsel also informed this Court

1 This case is before this Court on transfer from the First Court of Appeals in Houston pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.

2 in writing that she: (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 right to file a pro se response, to review the record prior to filing that

response, and to seek discretionary review if we conclude that the appeal is frivolous;

and (4) provided appellant a complete 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. In

this case, appellant has twice requested an extension of time to file a pro se response.

On January 20, 2022, we granted appellant’s first motion for extension of time and

appellant’s pro se response became due on April 12, 2022. On June 23, 2022, we granted

appellant’s second motion for extension of time and ordered appellant to file his pro se

response, if any, no later than August 8, 2022. The time for appellant to file a pro se

response has passed. Despite having an adequate amount of time to do so, appellant

has not filed 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.

3 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

and this Court’s judgment to appellant and to advise him of his right to file a petition for

discretionary review. 2 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at

411 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

IV. CONCLUSION

We affirm the trial court’s judgment.

NORA L. LONGORIA Justice

Do not publish. TEX. R. APP. P. 47.2 (b).

Delivered and filed on the 25th day of August, 2022.

2 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.