Brandon Wade Hermann v. State

• Court: Court of Appeals of Texas
• Decided: May 31, 2018
• Docket: 13-17-00114-CR
• Status: Published

Opinion

NUMBER 13-17-00114-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

BRANDON WADE HERMANN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the County Court at Law No. 1 of Victoria County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion by Justice Longoria

This is an appeal from a conviction for assault causing bodily injury. Hermann’s

court-appointed counsel has filed an Anders brief. See Anders v. California, 386 U.S.

738, 744 (1967). We affirm. I. ANDERS BRIEF

Pursuant to Anders, appellant’s court-appointed appellate counsel has 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. 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, 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).

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

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

is no reversible error in the trial court's judgment. Counsel has informed this Court, in

writing, that counsel has: (1) notified the appellant that counsel has filed an Anders brief

and a motion to withdraw; (2) provided appellant with a copy of the Anders brief; (3)

informed the appellant of his rights to file a pro se response 1 and review the record

preparatory to filing that response; and (4) provided the appellant with a form motion for

pro se access to the appellate record with instructions to file the motion in this Court. See

Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319; Stafford, 813 S.W.2d at 510 n.3; see

also In re Schulman, 252 S.W.3d at 409 n.23. Hermann has not filed a pro se response.

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).

2 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). If a later pro se brief is filed after an Anders brief has been submitted on

behalf of the appellant, the Court of Criminal Appeals has in Bledsoe stated an appellate

court has two choices. Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005).

We may determine the appeal is wholly frivolous and issue an opinion after reviewing the

record and finding no reversible error. Id. at 826–827. Alternatively, if we determine that

arguable grounds for appeal exist, we must remand for the appointment of new counsel

to brief those issues. Id. at 827.

We have conducted an independent review of the record and appellate counsel's

brief and find no reversible error. See Anders, 386 U.S. at 744; Garner v. State, 300

S.W.3d 763, 766 (Tex. Crim. App. 2009); Bledsoe, 178 S.W.3d at 826–27. We agree

with counsel that the record presents no arguably meritorious grounds for review and the

appeal is frivolous. We affirm the judgment of the trial court.

III. MOTION TO WITHDRAW

ln accordance with Anders, Hermann’s attorney has asked this Court for

permission to withdraw as counsel. See Anders, 386 U.S. at 744; see also ln 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.) ("[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

3 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 Hermann and to advise him of

his right to file a petition for discretionary review. 2 See TEX. R. APP. P. 48.4; see also ln

re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim.

App. 2006).

IV. CONCLUSION

Counsel's motion to withdraw is granted. We affirm the trial court’s judgment.

NORA L. LONGORIA Justice

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

Delivered and filed the 31st day of May, 2018.

2 No substitute counsel will be appointed. If Hermann seeks 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 was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4.