Brandon Boyd Shytles v. State

• Court: Court of Appeals of Texas
• Decided: March 5, 2009
• Docket: 13-08-00348-CR
• Status: Published

Opinion

NUMBER 13-08-00348-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

BRANDON BOYD SHYTLES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court

of Aransas County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela

Memorandum Opinion by Justice Rodriguez

Appellant, Brandon Boyd Shytles, appeals from his conviction of theft. See Tex. Penal Code Ann. § 31.03 (Vernon Supp. 2008). Appellant pleaded guilty and was sentenced to two years' incarceration. The trial court suspended the sentence and placed appellant on community supervision for a period of two years. After appellant pleaded "true" to violating the terms of his community supervision, the trial court revoked his community supervision and sentenced him to two years' incarceration. Appellant's counsel filed an Anders brief in which he concludes there are no arguable grounds for an appeal. We affirm.

I. Compliance with Anders v. California

In the Anders brief, appellant's counsel concludes that this appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744 (1967). Appellant's brief meets the requirements of Anders. See id. at 744-45; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). Counsel has presented a professional evaluation of the record and referred this Court to what, in his opinion, are all issues which might arguably support an appeal including, among other things, jurisdictional error, procedural error, and the sufficiency of the evidence. 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.

In compliance with High, 573 S.W.2d at 813, appellant's counsel has carefully discussed why, under controlling authority, there are no errors in the trial court's judgment. Counsel has informed this Court that he reviewed the record, researched the law applicable to the facts and issues, and now concludes that there are no arguable grounds for appeal. Counsel certifies to this Court that he served a copy of the brief and his motion to withdraw on appellant, and he informed appellant of his right to review the record and file a pro se response within thirty days. ⁽¹⁾ See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc); see also In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008). 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

The United States Supreme Court advised appellate courts that upon receiving a "frivolous appeal" brief, we 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 arguably supporting 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. 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."). 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; 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.) (noting that "[i]f 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 counsel's motion to withdraw. Within five days of the date of this Court's opinion, counsel is ordered to send a copy of the opinion and judgment to appellant and to advise appellant 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 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

NELDA V. RODRIGUEZ

Justice

Do not publish.

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

Memorandum Opinion delivered and

filed this 5th day of March, 2009.

1. 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.)).

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 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 should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 68.4.