Dean Coleman Brown v. State

• Court: Court of Appeals of Texas
• Decided: March 22, 2012
• Docket: 13-11-00432-CR
• Status: Published

Opinion

NUMBER 13-11-00432-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DEAN COLEMAN BROWN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 75th District Court of Liberty County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Justice Rodriguez Appellant Dean Coleman Brown appeals from his conviction for continuous sexual

assault of a child. See TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2011). Brown

pleaded guilty to the offense, and the trial court sentenced him to life imprisonment in the

Institutional Division of the Texas Department of Criminal Justice. Concluding that Brown's appeal would be frivolous, counsel filed an Anders brief in

which he reviewed the merits, or lack thereof, of the appeal. We affirm.1

I. COMPLIANCE WITH ANDERS V. CALIFORNIA

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

court-appointed appellate counsel has filed a brief with this Court, stating that he has

reviewed the record and has found no reversible error. After discussing the plea

proceeding and the punishment phase, counsel concludes that "an appeal in this case is

wholly without merit and would be totally frivolous." See In re Schulman, 252 S.W.3d

403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) ("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)

(en banc).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978), Brown's counsel has, thus, carefully discussed why, under controlling

authority, there are no errors 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 Brown, and

(3) provided Brown with a copy of the record and informed Brown of his right to review the

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). 2 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 Brown 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, this Court 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, 826-28 (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. Accordingly,

we affirm the judgment of the trial court.

III. MOTION TO WITHDRAW

In accordance with Anders, Brown's attorney has asked this Court for permission

to withdraw as counsel for Brown. 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.) (noting that "[i]f an attorney believes the appeal is frivolous,

he must withdraw from representing the appellant. To withdraw from representation, the

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) (orig. proceeding) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)). 3 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 Brown and to advise Brown 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).

NELDA V. RODRIGUEZ Justice

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

Delivered and filed the 22nd day of March, 2012.

3 No substitute counsel will be appointed. Should Brown 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 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. 4