Cody Wayne Bordes v. State

• Court: Court of Appeals of Texas
• Decided: March 15, 2012
• Docket: 13-11-00648-CR
• Status: Published

Opinion

NUMBERS 13-11-00648-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG CODY WAYNE BORDES A/K/A CODY BORDES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 252nd District Court of Jefferson County, Texas.

MEMORANDUM OPINION Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion by Justice Perkes Pursuant to a plea-bargain agreement, appellant, Cody Wayne Bordes a/k/a Cody

Bordes, pleaded guilty to burglary of a building, a state-jail felony. See TEX. PENAL CODE

ANN. § 30.02 (West 2003). The Court accepted the plea agreement and placed appellant

on deferred-adjudication community supervision for a period of three years.

Appellant thereafter failed to comply with at least three of his community-supervision

requirements by committing theft, failing to report to the community supervision department

of Jefferson County, and testing positive for cocaine by-products. The State filed a motion

to revoke appellant’s community supervision and adjudicate guilt. Appellant pleaded true

to the first three alleged violations of his community supervision, and the State abandoned

the remaining alleged violations. After receiving evidence, the trial court revoked

appellant’s community supervision, adjudicated appellant guilty, and sentenced appellant to

two years of confinement in the Texas Department of Criminal Justice—State Jail Division.

2 The trial court also ordered appellant to pay $1,530.00 in administrative fees, $619.00 in

court costs, and $1,044.48 in restitution.

Appellant timely perfected appeal and, as discussed below, his court-appointed

counsel filed an Anders brief. We affirm.1

I. ANDERS BRIEF

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

court-appointed appellate counsel 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. 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 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

1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this case is before us on transfer from the Ninth Court of Appeals in Beaumont, Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).

3 of his right to review the record and to file a pro se response.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 we have found

nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824,

827–28 (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. There is no reversible error in

the record. Accordingly, the judgment of the trial court is affirmed.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s attorney 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.) (“[i]f an attorney believes the appeal is frivolous, he must withdraw from

representing the appellant. To withdraw from representation, the appointed attorney must

2 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.)). 4 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 this opinion and this

Court’s judgment to appellant and to advise him 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).

Gregory T. Perkes Justice

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

Delivered and filed the 15th day of March, 2012.

3 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 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 Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4. 5