Donell Holland v. State

• Court: Court of Appeals of Texas
• Decided: February 2, 2017
• Docket: 13-16-00233-CR
• Status: Published

Opinion

NUMBERS 13-16-00233-CR AND 13-16-00234-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DONELL HOLLAND, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court of Aransas County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Contreras,1 and Longoria Memorandum Opinion by Justice Rodriguez Appellant Donell Holland was charged by two indictments for his criminal conduct

towards two sisters, both thirteen years of age at the time of the offense. In cause

1 Justice Dori Contreras, formerly Dori Contreras Garza. See TEX. FAM. CODE ANN. § 45.101 et

seq. (West, Westlaw through 2015 R.S.). number A-15-5114-CR, Holland was charged with two counts of aggravated sexual

assault of a child, a first-degree felony, see TEX. PENAL CODE ANN. § 22.02(a) (West,

Westlaw through 2015 R.S.), and one count of indecency with a child, a second-degree

felony. See id. § 21.11(a)(1) (West, Westlaw through 2015 R.S.). In cause number A-

15-5115-CR, Holland was charged with three counts of aggravated sexual assault of a

child and one count of indecency with a child. The cases were tried together, and a jury

found Holland guilty on all counts. Holland pleaded true to an enhancement allegation

relating to a prior felony conviction for aggravated assault. See id. §§ 12.42, 22.02(a)(1)

(West, Westlaw through 2015 R.S.). The trial court rendered two judgments sentencing

Holland to life in prison for each count of aggravated sexual assault of a child and fifteen

years in prison for each count of indecency with a child, with the sentences to run

concurrently.

Determining that there are no issues that might arguably support an appeal in

either cause, counsel filed two Anders briefs in which he reviewed the merits of Holland’s

appeals. We consolidate the appeals for purposes of this opinion and affirm the

judgments of the trial court.

I. COMPLIANCE WITH ANDERS

Pursuant to Anders v. California, 386 U.S. 738, 744–45 (1967), Holland’s counsel

filed briefs stating that, after reviewing the entire record and the applicable case law, he

has found no error upon which any appeal might be based. Counsel’s briefs meet the

requirements of Anders as they present professional evaluations showing why there are

no meritorious grounds for advancing any appeal. See Stafford v. State, 813 S.W.2d

2 503, 510 n.3 (Tex. Crim. App. 1991) (en banc); High v. State, 573 S.W.2d 807, 812 (Tex.

Crim. App. [Panel Op.] 1978); see also In re Schulman, 252 S.W.3d 403, 406 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.”).

Counsel demonstrated that he has complied with the requirements of Anders by

discussing the record evidence and why, under controlling authority, any appeal from the

judgments would be without merit and frivolous. See High, 573 S.W.2d at 813.

Counsel has informed this Court, in writing, that he has: (1) notified Holland that

counsel has filed Anders briefs and has requested that we allow him to withdraw as

counsel; (2) provided Holland with copies of the Anders briefs and the motions to

withdraw; (3) informed Holland of his right to file a pro se response,2 to review the record

preparatory to filing that response, and to seek discretionary review if the court of appeals

concludes that the appeals are frivolous; and (4) provided Holland with a form motion for

pro se access to the appellate record, with instructions to file the motion within ten days.

See Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014); see also In re

Schulman, 252 S.W.3d at 408 n.23. Adequate time has passed, and Holland has not

filed a pro se response.

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 II. INDEPENDENT REVIEW

Upon receiving an Anders brief, this Court must conduct a full examination of all

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 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. Accordingly, we affirm the judgments of

the trial court.

III. MOTION TO WITHDRAW

In accordance with Anders, counsel has asked this Court to grant his motions to

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

252 S.W.3d at 408 n.17 (quoting Jeffery v. State, 903 S.W.2d 776, 779–80 (Tex. App.—

Dallas 1995, no pet.) (“If 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.”) (editorial marks omitted)). We grant counsel’s

motions to withdraw. Within five days of the date of this Court’s opinion, counsel is

ordered to send copies of the opinion and the judgments to Holland and to advise Holland

4 of his right to pursue a petition for discretionary review.3 See TEX. R. APP. P. 48.4; see

also In re Schulman, 252 S.W.3d at 411 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 2nd day of February, 2017.

3 No substitute counsel will be appointed. Should Holland wish to seek review of these cases 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 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 Texas Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4. 5