Earl Wilmore v. State

• Court: Court of Appeals of Texas
• Decided: February 25, 2016
• Docket: 01-15-00027-CR
• Status: Published

Opinion

Opinion issued February 25, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-15-00027-CR ——————————— EARL WILMORE, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court Jefferson County, Texas Trial Court Case No. 13-17241

MEMORANDUM OPINION

In accordance with a plea bargain with the State, the trial court entered an

order deferring adjudication and placing appellant, Earl Wilmore, on five years’

community supervision. The State moved to adjudicate and the trial court found

Wilmore had violated conditions of his community supervision and adjudicated him guilty of the state jail felony offense of forgery. See TEX. PENAL CODE

ANN. § 32.21 (West 2011). The trial court imposed a sentence of confinement for

two years in the State Jail division of the Texas Department of Criminal Justice.

See TEX. PENAL CODE ANN. § 12.35(a) (West Supp. 2015). Wilmore timely filed a

notice of appeal.

Wilmore’s appointed counsel on appeal has filed a motion to withdraw,

along with a brief stating that the record presents no reversible error and the appeal

is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct.

1396 (1967).

Counsel’s brief meets the Anders requirements by presenting a professional

evaluation of the record and supplying us with references to the record and legal

authority. 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d

807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has thoroughly

reviewed the record and is unable to advance any grounds of error that warrant

reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193

S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

Although Wilmore received a copy of the record and was advised of his

right to file a response, he did not do so.

We have independently reviewed the entire record in this appeal, and we

conclude that no reversible error exists in the record, there are no arguable grounds

2 for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at

1400 (emphasizing that reviewing court—and not counsel—determines, after full

examination of proceedings, whether appeal is wholly frivolous); Garner v. State,

300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine

whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824,

826–27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing

court determines whether arguable grounds exist by reviewing entire record). We

note that an appellant may challenge a holding that there are no arguable grounds

for appeal by filing a petition for discretionary review in the Texas Court of

Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.

We affirm the judgment of the trial court and grant counsel’s motion to

withdraw.1 Attorney Terence Holmes must immediately send appellant the

required notice and file a copy of the notice with the Clerk of this Court. See TEX.

R. APP. P. 6.5(c).

PER CURIAM

Panel consists of Chief Justice Radack and Justices Massengale and Brown.

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

1 Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).