Brandon Michael Stacy v. State

• Court: Court of Appeals of Texas
• Decided: March 12, 2009
• Docket: 13-08-00279-CR
• Status: Published

Opinion

NUMBER 13-08-00279-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

BRANDON MICHAEL STACY, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court of San Patricio County, Texas.

MEMORANDUM OPINION

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

Appellant, Brandon Michael Stacy, was charged by indictment with one count of

manslaughter, a second-degree felony.1 See TEX . PENAL CODE. ANN . § 19.04 (Vernon

2003). Stacy pleaded guilty to the offense, and the trial court placed him on ten years’

deferred community supervision with no fine.

1 The punishm ent range for a second-degree felony is “for any term of not m ore than 20 years or less than 2 years.” T EX . P EN AL C OD E A N N . § 12.33 (Vernon 2003). On December 14, 2007, the State filed a motion to revoke Stacy’s community

supervision. The State later filed an amended motion to revoke on December 18, 2007.

In the amended motion to revoke, the State alleged that Stacy had violated several terms

and conditions of his community supervision by: (1) assaulting Christopher Flores in

violation of state law; (2) violating curfew; and (3) entering a bar.

On April 11, 2008, the trial court conducted a hearing on the State’s motion to

revoke. Stacy pleaded “not true” to the allegations in the State’s motion to revoke. At the

conclusion of the hearing, the trial court determined that the allegations contained in the

State’s motion to revoke were true. The trial court subsequently revoked Stacy’s

community supervision and sentenced him to twelve years’ incarceration in the Institutional

Division of the Texas Department of Criminal Justice with no fine. In addition, the trial court

certified Stacy’s right to appeal. This appeal ensued.

I. ANDERS BRIEF

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant’s

court-appointed appellate counsel has filed a brief with this Court, stating that his review

of the record yielded no grounds or error upon which an appeal can be predicated.

Although counsel’s brief does not advance any arguable grounds of error, it does present

a professional evaluation of the record demonstrating why there are no arguable grounds

to be advanced 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

2 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), 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 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 to file a pro se response within thirty days.2

See Anders, 386 U.S. at 744; 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 (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,

826-28 (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, we affirm the

judgment of the trial court.

2 The Texas Court of Crim inal Appeals has held that “the pro se response need not com ply 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 m eritorious issues.” In re Schulman, 252 S.W .3d 403, 409 n.23 (Tex. Crim . App. 2008) (quoting W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App.–W aco 1997, no pet.)).

3 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.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).

DORI CONTRERAS GARZA, Justice

Do not publish. TEX . R. APP. P. 47.2(b). Memorandum Opinion delivered and filed this the 12th day of March, 2009.

3 No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Crim inal Appeals, he m ust 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 m ust be filed within thirty days from the date of either this opinion or the last tim ely m otion for rehearing that was overruled by this Court. See T EX . R. A PP . P. 68.2. Any petition for discretionary review m ust be filed with this Court, after which it will be forwarded to the Texas Court of Crim inal Appeals. See T EX . R. A PP . P. 68.3; 68.7. Any petition for discretionary review should com ply with the requirem ents of Rule 68.4 of the Texas Rules of Appellate Procedure. See T EX . R. A PP . P. 68.4.