Darrius Hemmingway v. State

• Court: Court of Appeals of Texas
• Decided: April 21, 2016
• Docket: 13-15-00468-CR
• Status: Published

Opinion

NUMBER 13-15-00468-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

DARRIUS HEMMINGWAY, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Chief Justice Valdez A Jefferson County grand jury indicted appellant Darrius Hemmingway for the

offense of burglary of a habitation, a second-degree felony. See TEX. PENAL CODE ANN.

§ 30.02 (West, Westlaw through 2015 R.S.).1 Hemmingway entered a plea of guilty to

1 This case is before the Court on transfer from the Ninth Court of Appeals pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.) this offense, and the trial court placed him on deferred adjudication for a period of five

years. Thereafter, the State filed a motion to revoke Hemmingway’s deferred

adjudication. Hemmingway pleaded true to the State’s motion to revoke, and the trial

court sentenced him to twenty years in prison. This appeal followed. Hemmingway’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 v. California, Hemmingway’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 reversible 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) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014),

Hemmingway’s counsel carefully discussed why, under controlling authority, there is no

reversible error in the trial court's judgment. Hemmingway’s counsel has also informed

this Court that Hemmingway has been (1) notified that counsel has filed an Anders brief

and a motion to withdraw; (2) provided with copies of both pleadings; (3) informed of his

2 right to file a pro se response and review the record preparatory to filing that response;2

and (4) provided with copies of the reporter’s record and the clerk’s record. See Anders,

386 U.S. at 744; Kelly, 436 S.W.3d at 319–20, Stafford, 813 S.W.2d at 510 n.3; see also

In re Schulman, 252 S.W.3d at 409 n.23.

On November 19, 2015, Hemmingway received a complete copy of the appellate

record in his case. Since that time, Hemmingway has not filed a pro se response in this

Court.

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). A court of appeals has two options when an Anders brief is filed. After

reviewing the entire record, it may: (1) determine that the appeal is wholly frivolous and

issue an opinion explaining that it finds no reversible error; or (2) determine that there are

arguable grounds for appeal and remand the case to the trial court for appointment of

new appellate counsel. Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App.

2005). If the court finds arguable grounds for appeal, it may not review those grounds

until after new counsel has briefed those issues on appeal. Id.

We have reviewed the entire record and counsel’s brief, and we have found

nothing that would arguably support an appeal. See id. at 827–28 (“Due to the nature of

Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs

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.)).

3 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.

III. MOTION TO WITHDRAW

In accordance with Anders, Hemmingway’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.) (“[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 that this Court carried with the case on December 3, 2015. 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 Hemmingway 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).

IV. CONCLUSION

We affirm the trial court’s judgment.

/s/ Rogelio Valdez ROGELIO VALDEZ Chief Justice 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. Any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals, see id. R. 68.3, and should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4.

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

Delivered and filed this the 21st day of April, 2016.