Cling Mark Baynard v. State

• Court: Court of Appeals of Texas
• Decided: October 18, 2012
• Docket: 13-11-00740-CR
• Status: Published

Opinion

NUMBER 13-11-00740-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CLING MARK BAYNARD, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 93rd District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Perkes Memorandum Opinion by Chief Justice Valdez

Appellant, Cling Mark Baynard, was charged with possession of a usable

quantity of marihuana in an amount of 2,000 pounds or less but more than fifty pounds.

See TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(5) (West 2010).1 The jury found

Baynard guilty, and Baynard received a sentence of forty years’ confinement.

1 The charged offense is a second-degree felony; however, Baynard’s sentence was enhanced to a first-degree felony due to a prior conviction. Baynard’s appellate counsel, concluding that the appeal in this cause is frivolous, filed

an Anders brief, in which she reviewed the merits, or lack thereof, of the appeal. We

affirm.

I. ANDERS BRIEF

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

counsel has filed a motion to withdraw and a brief with this Court stating that she has

found no reversible error committed by the trial court and no arguable ground of error

upon which an appeal can be predicated. 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. Counsel’s brief sets out, in great detail,

relevant portions of the record that may provide potentially appealable issues. See In re

Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (AIn 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), Baynard’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

she has forwarded a copy of her brief to Baynard and has informed Baynard of his right

to file a pro se response. See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510

2 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. Baynard has filed his pro se

response with this Court. 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, counsel’s brief, and Baynard’s

pro se response; however, we have found nothing that would arguably support an

appeal. See Bledsoe v. State, 178 S.W.3d 824, 826–28 (Tex. Crim. App. 2005) (ADue

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.

III. MOTION TO WITHDRAW

In accordance with Anders, Baynard’s attorney 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 (citing Jeffery v. State, 903 S.W.2d 776, 779–80

(Tex. App.—Dallas 1995, no pet.) (AIf 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 Baynard and advise him of his

3 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).

__________________ ROGELIO VALDEZ Chief Justice

Do not Publish. TEX. R. APP. P. 47.2(b) Delivered and filed the 18th day of October, 2012.

2 No substitute counsel will be appointed. Should Baynard 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. Effective September 1, 2011, 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 Rule 68.4 of the Texas Rules of Appellate Procedure. See id. R. 68.4.