Gerald Wesley Dupree v. State

• Court: Court of Appeals of Texas
• Decided: May 23, 2013
• Docket: 13-12-00424-CR
• Status: Published

Opinion

NUMBERS 13-12-00423-CR & 13-12-00424-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

GERALD WESLEY DUPREE, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court of San Patricio County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion by Justice Benavides Gerald Wesley Dupree, appellant, was indicted for possession of a controlled

substance under Cause No. 13-12-00423-CR. See TEX. HEALTH & SAFETY CODE ANN. '

481.115 (West 2003). Dupree failed to appear for a pre-trial hearing and was then

indicted for bail jumping under Cause No. 13-12-00424-CR. See TEX. PENAL CODE ANN. ' 38.10 (West 2003).

He pleaded guilty to the possession charge and was sentenced to five years’

imprisonment, probated for two years. He also pleaded guilty to bail jumping and was

sentenced to ten years’ imprisonment, probated for five years. The State filed a motion to

revoke in each of the cases alleging numerous violations of probation. Dupree pleaded

true to both revocation motions and his probation was revoked. He was sentenced to

five years imprisonment under Cause No. 13-12-00423-CR and to two years

imprisonment under Cause No. 13-12-00424-CR in the Texas Department of Criminal

JusticeCInstitutional Division to run concurrently.

Dupree=s appellate counsel, concluding that "there are no arguable grounds to be

advanced on appeal," filed an Anders brief in which he reviewed the merits, or lack

thereof, of the appeal. We affirm as modified.

I. DISCUSSION

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant=s

court-appointed appellate counsel has filed a brief with this Court, stating that his 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) (AIn 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.

2 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), appellant'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 he

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 appellant; and (3)

informed appellant of 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. Dupree did not file a pro se brief although an

adequate time has passed.

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) (ADue 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.

1 The Texas Court of Criminal Appeals has held that Athe pro se response need not comply 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 meritorious issues.@ In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).

3 III. MOTION TO WITHDRAW

In accordance with Anders, appellant=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 A[i]f an attorney believes the appeal is

frivolous, he must withdraw from representing the appellant. To withdraw from

representation, the 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. All other motions will be denied as moot. Within

five days of the date of this Court=s opinion, counsel is ordered to send a copy of the

opinion and judgment to appellant and to advise appellant of his right to file a petition for

discretionary review.2 See TEX. R. APP. P. 48.4.

IV. MODIFICATION OF JUDGMENT

The trial court’s judgment on Cause No. 13-12-423-CR incorrectly spells

appellant’s name as “Geral Wesley Dupree.” The record shows, however, that

appellant’s name is “Gerald Wesley Dupree”. The Texas Rules of Appellate Procedure

allow this Court to modify judgments sua sponte to correct typographical errors and make

the record speak the truth. TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609

(Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana

2009, no pet.); Gray v. State, 628 S.W.2d 228, 233 (Tex. App.—Corpus Christi 1982, pet.

2 No substitute counsel will be appointed. Should appellant 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 file a pro se petition for discretionary review. Any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3, 68.7. Any petition for discretionary review should comply with the requirements of Rule 68.3 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.3.

4 ref'd). Thus, we modify the judgment to reflect the correct spelling of appellant’s name.

__________________________ GINA M. BENAVIDES, Justice

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

Delivered and filed the 23rd day of May, 2013.