Gregory Michael Celestine v. State

• Court: Court of Appeals of Texas
• Decided: February 10, 2011
• Docket: 13-10-00170-CR
• Status: Published

Opinion

NUMBER 13-10-00170-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

GREGORY MICHAEL CELESTINE, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the Criminal District Court of Jefferson County, Texas.

MEMORANDUM OPINION Before Justices Garza, Benavides, and Vela Memorandum Opinion by Justice Garza A jury convicted appellant, Gregory Michael Celestine, of possession of a

controlled substance, specifically, phencyclidine (“PCP”), a second-degree felony. See

TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (Vernon 2010). The trial court found

appellant to be a repeat felony offender and sentenced him to ten years’ imprisonment.

See TEX. PENAL CODE ANN. §§ 12.32, 12.42(b) (Vernon Supp. 2010). I. ANDERS BRIEF

Celestine’s appellate counsel has filed a motion to withdraw and a brief in

support thereof in which he states that he has diligently reviewed the entire record and

has concluded that there is no reversible error. See Anders v. California, 386 U.S. 738

(1967); High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978).

Counsel has informed this Court that he has (1) examined the record and has found no

arguable grounds to advance on appeal, (2) served copies of the brief and motion to

withdraw on Celestine, and (3) informed Celestine of his right to review the record and

to file a pro se response.1 See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d

503, 510 n.3 (Tex. Crim. App. 1991). Celestine filed a pro se response. See In re

Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008).

II. INDEPENDENT REVIEW

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

proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488

U.S. 75, 80 (1988). We have reviewed the entire record, counsel’s brief, and

appellant’s pro se response, and find that the appeal is wholly frivolous and without

merit. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005) (“Due to

the nature of Anders briefs, by indicating in the opinion it considered the issues raised in

the brief and reviewed the record for reversible error but found none, the court of

1 The Texas Court of Criminal Appeals has held that “the 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.)).

2 appeals met the requirements 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, Celestine’s counsel has filed a motion to withdraw as

his appellate counsel. 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.) (“If 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 the motion to withdraw.

We order that counsel must, within five days of the date of this opinion, send a

copy of the opinion and judgment to Celestine and 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).

________________________ DORI CONTRERAS GARZA Justice

Do not publish. TEX. R. APP. P. 47.2(b) Delivered and filed the 10th day of February, 2011.

2 No substitute counsel will be appointed. Should Celestine wish to seek further review 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 within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3, 68.7. Any petition for discretionary review must comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.