Earl Markeith Henderson v. State

• Court: Court of Appeals of Texas
• Decided: June 22, 2011
• Docket: 10-10-00397-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-10-00397-CR No. 10-10-00398-CR No. 10-10-00399-CR

EARL MARKEITH HENDERSON, Appellant v.

THE STATE OF TEXAS, Appellee

From the 272nd District Court Brazos County, Texas Trial Court Nos. 07-06404-CRF-272, 07-06405-CRF-272 and 08-02608-CRF-272

MEMORANDUM OPINION

Earl Henderson pled guilty to the offenses of Aggravated Assault on a Public

Servant, Evading Arrest in a Motor Vehicle (enhanced), Assault on a Public Servant

(two counts), and pled no contest to the offense of Aggravated Robbery. TEX. PEN.

CODE ANN. §§ 22.02, 38.04, 29.03, 22.01 (West Supp. 2010). There was no agreement

regarding punishment. Henderson was sentenced by the trial court to concurrent

sentences of forty years in prison for the aggravated assault, twenty years in prison for

the aggravated robbery, and ten years in prison each for the evading arrest and the two assaults.

Henderson’s appellate counsel has filed an Anders brief and a motion to

withdraw as counsel.1 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d

493 (1967). Counsel concludes that the appeals are frivolous. Counsel informed

Henderson of the right to file a pro se brief, but Henderson has not done so.

Counsel’s brief evidences a professional evaluation of the record for error, and

we conclude that counsel performed the duties required of appointed counsel. See

Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also

In re Schulman, 252 S.W.3d at 407.

In reviewing Anders appeals, we must, “after a full examination of all the

proceedings, . . . decide whether the case is wholly frivolous.” Anders at 744; accord

Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991); Coronado v. State, 996

S.W.2d 283, 285 (Tex. App.—Waco 1999, order) (per curiam), disp. on merits, 25 S.W.3d

806 (Tex. App.—Waco 2000, pet. ref’d). An appeal is “wholly frivolous” or “without

merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486 U.S. 429,

439 n.10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988). Arguments are frivolous when they

“cannot conceivably persuade the court.” McCoy, 486 U.S. at 436. An appeal is not

wholly frivolous when it is based on “arguable grounds.” Stafford, 813 S.W.2d at 511.

After a review of the briefs and the entire record in these appeals, we determine

that these appeals are wholly frivolous. See Bledsoe v. State, 178 S.W.3d at 826-27.

Accordingly, we affirm the trial court’s judgments.

1 The aggravated assault and the evading charges are the basis of No. 10-10-00397-CR, the aggravated robbery is the basis of No. 10-10-00398-CR, and the two assaults are the basis of No. 10-10-00399-CR. These causes were considered by the trial court together and counsel for Henderson submitted one brief covering all three appeals; therefore, we will also address the appeals jointly.

Henderson v. State Page 2 Should Henderson wish to seek further review of these cases by the Texas Court

of Criminal Appeals, Henderson must either retain an attorney to file petitions for

discretionary review or Henderson must file pro se petitions 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 this Court, after which it will be forwarded to the Texas Court of Criminal Appeals

along with the rest of the filings in this case. See TEX. R. APP. P. 68.3. Any petition for

discretionary review should comply with the requirements of Rule 68.4 of the Texas

Rules of Appellate Procedure. See TEX. R. APP. P. 68.4. See In re Schulman, 252 S.W.3d

403, 409 n.22 (Tex. Crim. App. 2008) (citing Glover v. State, No. 06-07-00060-CR, 2007

Tex. App. LEXIS 9162 (Tex. App.—Texarkana, Nov. 20, 2007, pet. ref’d) (not designated

for publication).

Counsel’s request that he be allowed to withdraw from representation of

Henderson is granted. Additionally, counsel must send Henderson a copy of our

decision, remind Henderson of his right to file pro se petitions for discretionary review,

and send this Court a letter certifying counsel’s compliance with Texas Rule of

Appellate Procedure 48.4. TEX. R. APP. P. 48.4; see In re Schulman, 252 S.W.3d at 409 n.

22.

TOM GRAY Chief Justice

Henderson v. State Page 3 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed June 22, 2011 Do not publish [CRPM]

Henderson v. State Page 4