Earnest J. Owens v. State

• Court: Court of Appeals of Texas
• Decided: February 21, 2018
• Docket: 10-17-00353-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-17-00352-CR No. 10-17-00353-CR

EARNEST J. OWENS, Appellant v.

THE STATE OF TEXAS, Appellee

From the 13th District Court Navarro County, Texas Trial Court Nos. D35341-CR & D35328-CR

MEMORANDUM OPINION

Earnest Owens entered a plea of not guilty to two offenses of possession of a

controlled substance. The trial court deferred adjudication of guilt and placed Owens on

community supervision for five years and assessed a $500 fine for each offense. On May

19, 2017, the State filed an Application to Proceed to Final Adjudication. The State then

filed an amended Application to Proceed to Final Adjudication on June 28, 2017. Owens

pleaded true to the allegations in the State’s Application to Proceed to Final Adjudication. The trial court found the allegations to be true, convicted Owens of the offenses of

possession of a controlled substance, and assessed punishment at five years confinement

and a $500 fine for each offense. The trial court suspended the imposition of the

confinement portion of the sentence and placed Owens on community supervision for

five years. We affirm.

Owens’s appointed counsel filed an Anders brief asserting that she has diligently

reviewed the appellate record and that, in her opinion, the appeal is frivolous. See Anders

v. California, 386 U.S. 738 (1967). Counsel informed Owens of his right to submit a brief

on his own behalf. Owens did not file a brief. 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 v. California, 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 403, 407 (Tex.

Crim. App. 2008).

In reviewing an Anders appeal, we must, "after a full examination of all the

proceedings, ... decide whether the case is wholly frivolous." See Anders v. California, 386

U.S. at; accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). 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 (1988). After a review of the entire record in this

appeal, we determine the appeal to be wholly frivolous. See Bledsoe v. State, 178 S.W.3d

824, 826-27 (Tex. Crim. App. 2005). Accordingly, we affirm the trial court's judgments.

Owens v. State Page 2 Counsel's request that she be allowed to withdraw from representation of Owens

is granted. Additionally, counsel must send Owens a copy of our decision, notify Owens

of his right to file a pro se petition 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 also In re Schulman, 252 S.W.3d at 409 n.22.

AL SCOGGINS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed; motion granted Opinion delivered and filed February 21, 2018 Do not publish [CR25]

Owens v. State Page 3