Brad Wilson v. State

• Court: Court of Appeals of Texas
• Decided: March 13, 2008
• Docket: 13-07-00323-CR
• Status: Published

Opinion

NUMBER 13-07-323-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

BRAD WILSON, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 347th District Court of Nueces County, Texas

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Vela Memorandum Opinion by Justice Rodriguez

Appellant, Brad Wilson, appeals from his conviction of possession of a controlled

substance, a state jail felony. See TEX . HEALTH & SAFETY CODE ANN . § 481.115 (Vernon

2003). The trial court denied appellant's pre-trial motion to suppress any and all evidence

seized, and the State filed a notice of intent to enhance appellant's punishment with two prior felony convictions. After appellant entered a plea of not guilty and waived a jury trial,

the trial court found him guilty of the charged offense.1 Increasing his punishment from a

state jail to a second degree felony due to the enhancement, the trial court sentenced

appellant to four years incarceration in the Institutional Division of the Texas Department

of Corrections. Concluding that there are no meritorious issues for appeal, appellant's

counsel filed a brief in which he reviewed the merits, or lack thereof, of the appeal. We

affirm.

I. Compliance with Anders v. California

Appellant's court-appointed counsel filed an Anders brief in which he has concluded

that there are no grounds of error upon which an appeal can be predicated. Anders v.

California, 386 U.S. 738, 744 (1967). Appellant's brief meets the requirements of Anders.

Id. at 744-45; see High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978).

In compliance with Anders, counsel presented a professional evaluation of the record

including, among other things, a review of the transcript of the motion to suppress,

jurisdictional issues, sufficiency of the evidence to support the conviction, and the

effectiveness of counsel. See Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684,

684 (Tex. Crim. App. 1974); see also High, 573 S.W.2d at 812.

Counsel has informed this Court that he has reviewed the appellate record and

concludes that there is no significant issue presented in the record of this case upon which

a ground of error could be predicated. Counsel served a copy of his brief on appellant and

1 W e note two inconsistencies in the record. First, the judgm ent of conviction states that appellant pleaded guilty to the offense. Second, the am ended notice of appeal indicates that appellant was found guilty by a jury. It is clear from other portions of the record and from appellant's briefing that appellant pleaded not guilty and that his case was tried to the bench. Because these errors are not germ ane to the disposition of this appeal, we need not address them here. See T EX . R. A PP . P. 47.1. 2 informed him that, in his view, the appeal is wholly without merit, but that appellant has a

right to review the record and to file a pro se brief if he so desires. See Anders, 386 U.S.

at 744-45; see also Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991) (en

banc); High, 573 S.W.2d at 813. Counsel has also indicated that he has forwarded the

clerk's record, the reporter's record, and the supplemental clerk's record to appellant. More

than thirty days have passed, and no pro se brief has been filed and no motion for

extension of time to file such brief has been received.

II. Independent Review

The United States Supreme Court advised appellate courts that upon receiving a

"frivolous appeal" brief, they must conduct "a full examination of all the proceedings to

decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S. 75, 80 (1988); see

Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.–Corpus Christi 2003, no pet.).

Accordingly, we have carefully reviewed the record and have found nothing that would

arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App.

2005); Stafford, 813 S.W.2d at 509. We agree with counsel that the appeal is wholly

frivolous and without merit. See Bledsoe, 178 S.W.3d at 827-28 ("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.").

III. Conclusion

The judgment of the trial court is affirmed. Additionally, having affirmed the

judgment, we now grant counsel's motion to withdraw. See Anders, 386 U.S. at 744. We

order counsel to notify appellant of the disposition of this appeal and of the availability of

3 discretionary review. See In re K.D., S.D., and J.R., 127 S.W.2d 66, 68 n.3 (Tex.

App.–Houston [1st Dist.] 2003, no pet.) (citing Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.

Crim. App. 1997) (en banc) (per curiam)).

NELDA V. RODRIGUEZ Justice

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

Memorandum Opinion delivered and filed this 13th day of March, 2008.