Fabian Medlin v. State

• Court: Court of Appeals of Texas
• Decided: July 2, 2009
• Docket: 13-08-00359-CR
• Status: Published

Opinion

NUMBER 13-08-00359-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

FABIAN MEDLIN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 156th District Court of Bee County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Benavides Memorandum Opinion by Chief Justice Valdez

On December 14, 2007, appellant, Fabian Medlin, was indicted on one count of

aggravated sexual assault of a child and two counts of indecency with a child, first, second,

and third-degree felonies, respectively. See TEX . PENAL CODE ANN . § 22.021 (Vernon

Supp. 2008), § 21.11 (Vernon 2003). The case was tried to a jury. When the State rested, Medlin moved for a directed verdict on the third count, and the trial court granted his

motion. The jury found Medlin guilty on both counts that were submitted to it. Medlin

elected to have the trial court assess punishment, and his wife, mother, and he testified

during the punishment phase. The trial court sentenced Medlin to terms of confinement

for twenty and ten years, to run concurrently. Medlin’s court-appointed appellate counsel

has filed an Anders brief. We affirm.

I. ANDERS BRIEF

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), Medlin’s court-appointed

appellate counsel has filed a brief with this Court, stating that her review of the record

yielded no grounds or error upon which an appeal can be predicated. Although counsel’s

brief does not advance any arguable grounds of error, it does present a professional

evaluation of the record demonstrating why there are no arguable grounds to be advanced

on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“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.”) (citing Hawkins v. State, 112 S.W.3d 340, 343-44 (Tex.

App.–Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex.

Crim. App. 1991).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]

1978), Medlin’s counsel has carefully discussed why, under controlling authority, there are

no errors in the trial court’s judgment. Counsel has informed this Court that she has: (1)

examined the record and found no arguable grounds to advance on appeal, (2) served a

copy of the brief and counsel’s motion to withdraw on Medlin, and (3) informed Medlin of 2 his right to review the record and to file a pro se response within thirty days.1 See Anders,

386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d

at 409 n.23. More than an adequate period of time has passed, and Medlin has not filed

a pro se response. See In re Schulman, 252 S.W.3d at 409.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the

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 counsel’s brief and have found

nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824,

826-28 (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

judgment of the trial court.

III. MOTION TO WITHDRAW

In accordance with Anders, Medlin’s attorney has asked this Court for permission

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

Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex.

App.–Dallas 1995, no pet.) (noting that “[i]f an attorney believes the appeal is frivolous, he

must withdraw from representing the appellant. To withdraw from representation, the

1 The Texas Court of Crim inal Appeals has held that “the pro se response need not com ply 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 m eritorious issues.” In re Schulman, 252 S.W .3d 403, 409 n.23 (Tex. Crim . App. 2008) (quoting W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App.–W aco 1997, no pet.)). 3 appointed attorney must file a motion to withdraw accompanied by a brief showing the

appellate court that the appeal is frivolous.”) (citations omitted)). We grant counsel’s

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

to send a copy of the opinion and judgment to Medlin and to advise him of his right to file

a petition for discretionary review.2 See TEX . R. APP. P. 48.4; see also In re Schulman, 252

S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

________________________ ROGELIO VALDEZ Chief Justice Do Not Publish. TEX . R. APP. P. 47.2(b) Memorandum Opinion delivered and filed this the 2nd_day of July, 2009.

2 No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Crim inal Appeals, he m ust 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 m ust be filed within thirty days from the date of either this opinion or the last tim ely m otion for rehearing that was overruled by this Court. See T EX . R. A PP . P. 68.2. Any petition for discretionary review m ust be filed with this Court, after which it will be forwarded to the Texas Court of Crim inal Appeals. See T EX . R. A PP . P. 68.3; 68.7. Any petition for discretionary review should com ply with the requirem ents of Rule 68.4 of the Texas Rules of Appellate Procedure. See T EX . R. A PP . P. 68.4.