Craig Burleson v. the State of Texas

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

CRAIG ALLEN BURLESON, § No. 08-21-00188-CR

Appellant, § Appeal from the

v. § 361st District Court

THE STATE OF TEXAS, § of Brazos County, Texas

Appellee. § (TC# 19-02608-CRF-361)

OPINION

Craig Allen Burleson pled guilty to assault of a family/household member with previous

convictions; the trial court sentenced him to life in prison. TEX.PENAL CODE ANN.

§ 22.01(b)(2)(A). He appeals his sentence. Finding no error, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

After being indicted for assaulting a family/household member with two previous felony

convictions, Burleson entered an open plea of guilty to the charged offense. In conjunction with

his open plea, Burleson signed written plea admonishments that adequately informed him of his

rights. The written admonishments notified Burleson that the range of punishment for his offense

was a period of confinement “for a period of not less than twenty-five (25) years or more than

ninety-nine (99) years or life.” As part of the written admonishments, Burleson waived his right

to a jury trial and judicially confessed. Burleson pled guilty to assaulting a family/household member at the plea hearing and admitted to three prior convictions. The trial court accepted

Burleson’s plea after admonishing him regarding the consequences of his plea.

Burleson elected to have the trial court determine his punishment. In a punishment phase

of the trial, the court heard from twenty-two witnesses, over three days, who developed the

circumstances of the charge in this case, and Burleson’s criminal history. Following that hearing,

the trial court sentenced him to life in prison. This appeal followed.

II. FRIVOLOUS APPEAL

Burleson’s court-appointed appellate counsel has filed an Anders brief. See Anders v.

California, 386 U.S. 738, 744 (1976); Gainous v. State, 436 S.W.2d 137, 138 (Tex.Crim.App.

1969). In Anders, the United States Supreme Court recognized that counsel, though appointed to

represent the appellant in an appeal from a criminal conviction, has no duty to pursue a frivolous

matter on appeal. Anders, 386 U.S. at 744. Counsel was therefore permitted to withdraw after

informing the court of his conclusion and the effort made in arriving at that conclusion. Id.

Counsel in this case has concluded that, after a thorough review of the record, Burleson’s

appeal is frivolous. Her brief meets the requirements of Anders by presenting a professional

evaluation of the record demonstrating why there are no arguable grounds to be advanced. See

Anders, 386 U.S. at 744. In accordance with Anders’s requirements, counsel has moved to

withdraw. Additionally, counsel notified the Court in writing that she delivered a copy of the brief

and motion to withdraw to Burleson, and she has advised Burleson of his right to review the record

and file a pro se brief. Kelly v. State, 436 S.W.3d 313, 318-20 (Tex.Crim.App. 2014) (setting forth

duties of counsel). She also notified Burleson of his right to seek discretionary review in the Texas

Court of Criminal Appeals if this Court finds the appeal is frivolous. Counsel provided Burleson

2 with a motion for pro se access to the appellate record so he could obtain the necessary records to

file a brief, which he has done, but Appellant has not filed his own brief.

III. INDEPENDENT REVIEW

After counsel files a proper Anders brief, the court of appeals must conduct its own review

of the record to ascertain if there are any arguable grounds for the appeal. In re Schulman, 252

S.W.3d 403, 409 (Tex.Crim.App. 2008). We have thoroughly reviewed the record and counsel’s

brief in this case, and we agree with counsel’s professional assessment that the appeal is frivolous

and without merit. Because there is nothing in the record that might arguably support the appeal,

a further discussion of the arguable grounds advanced in counsel’s Anders brief would add nothing

to the jurisprudence of the State.

IV. MOTION TO WITHDRAW

Finding Burleson’s counsel has substantially complied with the requirements of Anders

and Kelly, we grant counsel’s motion to withdraw. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d

at 318-20. No substitute counsel will be appointed. Should Burleson 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 is overruled by this Court. See TEX.R.APP.P. 68.2. Any petition

for discretionary review must be filed in the Court of Criminal Appeals. See TEX.R.APP.P. 68.3.

Any petition for discretionary review must comply with Rule 68.4 of the Texas Rules of Appellate

Procedure.

V. CONCLUSION

We affirm the trial court’s judgment.

3 JEFF ALLEY, Justice

June 28, 2022

Before Rodriguez, C.J., Palafox, and Alley, JJ.

(Do Not Publish)