Javon Lee Gilbert v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 20, 2024
• Docket: 01-23-00274-CR
• Status: Published

Opinion

Opinion issued June 20, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00274-CR ——————————— JAVON LEE GILBERT, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court Harris County, Texas Trial Court Case No. 1409965

MEMORANDUM OPINION

Appellant Javon Lee Gilbert pleaded guilty to the first-degree felony offense

of arson without an agreed punishment recommendation from the State. See TEX.

PENAL CODE § 28.02(d)(2). The trial court deferred adjudication of Gilbert’s guilt

and placed him on community supervision for eight years. The State later filed a motion to adjudicate Gilbert’s guilt, alleging violations of the conditions of his

community supervision, including that he committed the offense of murder. Gilbert

pleaded “not true” to the alleged violations. After a hearing, the trial court found the

allegations true, adjudicated Gilbert guilty of arson, and assessed his punishment at

confinement for life. The trial court certified that this was not plea-bargain case and

that Gilbert has a right to appeal. Gilbert timely filed a notice of appeal.

Gilbert’s appointed counsel on appeal has moved to withdraw and filed a

brief, stating that the record presents no reversible error and that the appeal lacks

merit and is frivolous. See Anders v. California, 386 U.S. 738 (1967). Counsel’s

brief meets the Anders requirements by presenting a professional evaluation of the

record and supplying references to the record and legal authority. See id. at 744; see

also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates

that she has thoroughly reviewed the record and is unable to advance any ground of

error warranting reversal. See Anders, 386 U.S. at 744; Mitchell v. State, 193 S.W.3d

153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

Gilbert’s counsel has certified that she mailed a copy of the motion to

withdraw and the Anders brief to Gilbert and informed him of his right to access the

record and file a response. See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim.

App. 2008). Counsel also certified that she provided Gilbert with a form motion for

2 pro se access to the records for his response. See Kelly v. State, 436 S.W.3d 313, 322

(Tex. Crim. App. 2014). Gilbert did not file a response to the Anders brief.

We have independently reviewed the entire record, and we conclude that no

reversible error exists in the record, that there are no arguable grounds for review,

and that therefore the appeal is frivolous. See Anders, 386 U.S. at 744 (emphasizing

that reviewing court—and not counsel—determines, after full examination of

proceedings, whether appeal is wholly frivolous); Garner v. State, 300 S.W.3d 763,

767 (Tex. Crim. App. 2009) (reviewing court must determine whether arguable

grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim.

App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing court determines

whether arguable grounds exist by reviewing entire record). We note that an

appellant may challenge a holding that there are no arguable grounds for appeal by

filing a petition for discretionary review in the Texas Court of Criminal Appeals. See

Bledsoe, 178 S.W.3d at 827 & n.6.

3 We affirm the judgment of the trial court and grant counsel’s motion to

withdraw.1 Attorney BreAnna Schwartz must immediately send Gilbert the required

notice and file a copy of the notice with the Clerk of this Court. See TEX. R. APP. P.

6.5(c).

PER CURIAM

Panel consists of Justices Hightower, Rivas-Molloy, and Farris.

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

1 Appointed counsel still has a duty to inform Gilbert of the result of the appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). 4