David Servin v. State

• Court: Court of Appeals of Texas
• Decided: September 1, 2016
• Docket: 13-15-00369-CR
• Status: Published

Opinion

NUMBER 13-15-00369-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DAVID SERVIN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 206th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION Before Justices Benavides, Perkes, and Longoria Memorandum Opinion by Justice Benavides

On June 30, 2014, David Servin entered a plea of guilty to the offense of online

solicitation of a minor, a second-degree felony. See TEX. PENAL CODE ANN. § 33.021

(West, Westlaw through 2015 R.S.). The trial court deferred adjudication and placed

Servin on community supervision for a period of four years and imposed various conditions of community supervision.

On February 17, 2015, the State filed a motion to adjudicate Servin’s guilt alleging

that he violated various terms of his community supervision, including: committing two

separate driving-while-intoxicated offenses, see id. § 49.04 (West, Westlaw through 2015

R.S.); committing the offense of failing to identify, see id. § 38.02 (West, Westlaw through

2015 R.S.); using alcohol while on community supervision; and failing to report to his

probation officer. After pleading not true to these allegations, a hearing was held on the

State’s motion to adjudicate guilt, where testimony was received from his probation

officer, as well as the two officers who arrested Servin for his various criminal offenses.

After the hearing, the trial court found, among other allegations, that Servin had

committed the criminal offenses as alleged in the State’s motion and adjudicated him

guilty of online solicitation of a minor. See id. § 33.021. The trial court sentenced Servin

to seven years’ confinement with the Texas Department of Criminal Justice’s Institutional

Division. Servin’s court-appointed appellate 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, Servin’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

2 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 and Kelly v. State, Servin’s counsel carefully

discussed why, under controlling authority, there is no reversible error in the trial court’s

judgment. See High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978);

Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014). Servin’s appellate

counsel also notified this Court that he: (1) notified Servin that he has filed an Anders

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

informed Servin of his rights to file a pro se response, review the record preparatory to

filing that response,1 and seek discretionary review if we concluded that the appeal is

frivolous; (4) provided Servin with a pro se motion to access the record; and (5) informed

Servin that the pro se response, if any, should identify for the Court those issues which

he believes the Court should consider in deciding whether the case presents any

meritorious issues. 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. A reasonable

amount of time has passed, and Servin had not filed a pro se brief.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the

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 to case presents any meritorious issues.” In re Schulman, 252 S.W.3d at 409 n.23 (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).

3 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 and a

subsequent pro se response are 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 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, Servin’s attorney has asked this Court for permission

to withdraw as counsel for Servin. See Anders, 386 U.S. at 744; see also In re

Schulman, 252 S.W.3d at 408 n.17 (citing Jeffrey 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

4 appellate court that the appeal is frivolous.”) (citations omitted)). We grant counsel’s

motion to withdraw. Within five days of this Court’s opinion, counsel is ordered to send

a copy of this opinion and this Court’s judgment to Servin and advise him of his 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).

IV. CONCLUSION

We affirm the judgment of the trial court.

GINA M. BENAVIDES, Justice

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

Delivered and filed the 1st day of September, 2016.

2 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 TEX. R. APP. P. 68.3, and should comply with the requirements of the Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4.