Gulian Cobb v. State

Opinion

NUMBERS 13-08-00737-CR 13-08-00738-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

GULIAN COBB, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 148th District Court of Nueces County, Texas.

MEMORANDUM OPINION

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

On December 1, 2008, appellant, Gulian Cobb, entered open pleas of guilty to two

offenses of the state jail felony of unauthorized use of a motor vehicle.1 Appellant also

1 See T EX . P EN AL C OD E A N N . § 31.07 (Vernon 2003). Appellate cause num ber 13-08-737-CR is trial court cause num ber 08-CR-3282-E; appellate cause num ber 13-08-738-CR is trial court cause num ber 08- CR-3426-E. Each offense had different victim s. pleaded "true" to the State's enhancement allegation in the indictments.2 After a hearing,

the trial court found appellant guilty of the underlying offenses, concluded that the

enhancement allegation was true, and sentenced him to six years' confinement for each

offense. The sentences would run concurrently.3 The trial court certified appellant’s right

to appeal in each case, and these appeals followed. We affirm in each case.

I. ANDERS BRIEF

Pursuant to Anders v. California,4 appellant’s court-appointed appellate counsel has

filed a brief with this Court stating that, after examining the records in each case and

investigating all possible grounds of appeal, she has found no possible error and that

"[t]here are no issues to warrant an appeal of the adjudication and sentence of [a]ppellant."

Although counsel's brief does not advance any arguable grounds of error, it does present

a professional evaluation of the records demonstrating why there are no arguable grounds

to be advanced on appeal in either case.5

In compliance with High v. State,6 appellant's counsel has carefully discussed why,

2 In both indictm ents, the State alleged that appellant had previously been convicted of aggravated robbery.

3 See id. § 12.35(c)(2)(A) (Vernon Supp. 2009) (providing that a person found guilty of a state jail felony who has previously been convicted of an offense listed in article 42.12, section 3g of the code of crim inal procedure, including am ong other things, aggravated robbery, shall be punished for a third degree felony); id. § 12.34(a) (Vernon Supp. 2009) (setting out the punishm ent range for a third degree felony is not m ore than ten years or less than two years); see also T EX . C OD E C R IM . P R O C . A N N . art. 42.12, § 3g(a)(1)(F) (Vernon Supp. 2009).

4 386 U.S. 738, 744 (1967).

5 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 m ust 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).

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

2 under controlling authority, there are no errors in the trial court's judgments. Counsel has

(1) informed this Court that she has forwarded a copy of the brief and her request to

withdraw as counsel to appellant in both cases, (2) examined the records and found no

arguable grounds to advance on appeal, and (3) informed appellant of his right to review

the records and to file a pro se response in each case.7 More than an adequate period of

time has passed, and appellant has not filed a pro se response in either case.8

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.9 We have reviewed the

entire record and counsel's brief and have found nothing that would arguably support an

appeal in either case.10 Accordingly, we affirm the judgments of the trial court in each

case.

III. MOTION TO WITHDRAW

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

7 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. 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 at 409 n.23 (quoting W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App.–W aco 1997, no pet.)).

8 See In re Schulman, 252 S.W .3d at 409.

9 Penson v. Ohio, 488 U.S. 75, 80 (1988).

10 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 m et the requirem ent of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W .2d at 509.

3 to withdraw as counsel for appellant.11 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 appellant and to advise appellant of his right to file a

petition for discretionary review.12

Do not publish. TEX . R. APP. P. 47.2(b). Delivered and filed the 19th day of August, 2010

11 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 m ust withdraw from representing the appellant. To withdraw from representation, the appointed attorney m ust file a m otion to withdraw accom panied by a brief showing the appellate court that the appeal is frivolous”) (citations om itted)).

12 See T EX . R. A PP . 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). 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.