Ernest Earl Washington, Jr. v. State

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-17-00308-CR

ERNEST EARL WASHINGTON, JR., Appellant v.

THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2016-1709-C2

MEMORANDUM OPINION

Ernest Earl Washington, Jr. was convicted of two counts of aggravated robbery

and sentenced to 25 years in prison for each count. See TEX. PENAL CODE ANN. § 29.03

(West 2011). The sentences were ordered to run concurrently.

Washington’s appellate attorney filed a motion to withdraw and an Anders brief

in support of the motion to withdraw, asserting that the appeal presents no issues of

arguable merit. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Counsel advised Washington that counsel had filed the motion and brief pursuant to

Anders and provided Washington with a copy of the record, advised Washington of his

right to review the record, and advised Washington of his right to submit a response on

his own behalf. Washington submitted a response. The State briefly replied to

Washington’s response.

Counsel asserts in the Anders brief that counsel has made a thorough review of the

entire record, including voir dire, the indictment, both the guilt/innocence and

punishment phases of the trial, the effectiveness of counsel, potential jury misconduct,

and the court’s charge. After the review, counsel concludes there is no non-frivolous

issue to raise in this appeal. 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 403, 407 (Tex. Crim. App. 2008).

In his response to counsel’s Anders brief, Washington contends the evidence was

insufficient to support his conviction, jury tampering was present, and both his trial and

appellate counsel were ineffective. The record does not support Washington’s

contentions.

Upon the filing of an Anders brief, as the reviewing appellate court, it is our duty

to independently examine the record to decide whether counsel is correct in determining

that an appeal is frivolous. See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503,

Washington v. State Page 2 511 (Tex. Crim. App. 1991). Arguments are frivolous when they "cannot conceivably

persuade the court." McCoy v. Court of Appeals, 486 U.S. 429, 436, 108 S. Ct. 1895, 100 L.

Ed. 2d 440 (1988).

Having carefully reviewed the entire record, the Anders brief, and Washington’s

response, we have determined that this appeal is frivolous. See Bledsoe v. State, 178 S.W.3d

824, 826-27 (Tex. Crim. App. 2005). Accordingly, we affirm the trial court’s Judgment of

Conviction by Jury (Count I) and Judgment of Conviction by Jury (Count II), both signed

on August 16, 2017.

Should Washington 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 must file a pro se petition for discretionary review. No substitute counsel will

be appointed. Any petition for discretionary review must be filed within thirty days from

the date of this opinion or the last timely motion for rehearing or timely motion for en

banc reconsideration has been overruled by this Court. See TEX. R. APP. P. 68.2. Any

petition and all copies of the petition for discretionary review must be filed with the Clerk

of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3. (Tex. Crim. App. 1997, amended

eff. Sept. 1, 2011). 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 also In re Schulman, 252 S.W.3d at 409 n.22.

Counsel's motion to withdraw from representation of Washington is granted, and

Washington v. State Page 3 counsel is discharged from representing Washington. Notwithstanding counsel’s

discharge, counsel must send Washington a copy of our decision, notify him 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.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed October 17, 2018 Do not publish [CR25]

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