Jesse Stevens v. State

• Court: Court of Appeals of Texas
• Decided: June 4, 2009
• Docket: 13-08-00573-CR
• Status: Published

Opinion

NUMBERS 13-08-00571-CR 13-08-00572-CR 13-08-00573-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JESSE STEVENS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 319th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela Memorandum Opinion by Justice Garza

Appellant, Jesse Stevens, pleaded guilty on April 3, 2008 to three offenses pursuant

to a plea agreement with the State. In trial court cause number 08-CR-0017-G,1 Stevens

1 Appellate cause num ber 13-08-00571-CR. pleaded guilty to burglary of a habitation, a second-degree felony. See TEX . PENAL CODE

ANN . § 30.01(a)(2), (c)(2) (Vernon 2003). In trial court cause number 08-CR-1113-G,2

Stevens pleaded guilty to two counts of credit card or debit card abuse, a state jail felony.

See id. § 32.31(b)(1)(A), (d) (Vernon Supp. 2008). In trial court cause number 07-CR-

3349-G,3 Stevens pleaded guilty to theft of more than $1,500 but less than $20,000, also

a state jail felony. See id. § 31.03(a), (e)(4)(A) (Vernon Supp. 2008). The trial court

deferred adjudication on the burglary charge and placed Stevens on ten years’ community

supervision. The trial court found Stevens guilty of the other two offenses, sentenced him

to two years’ confinement in state jail, suspended the sentence, and placed him on

community supervision for five years. All three sentences were ordered to run

concurrently.

On September 9, 2008, the State filed motions to revoke Stevens’ community

supervision in each of the three cases, with each motion alleging that Stevens had

committed seven violations of the conditions of his community supervision. The alleged

violations related primarily to Stevens’ behavior at a Substance Abuse Felony Punishment

Facility. On September 26, 2008, Stevens pleaded “true” to all seven allegations in each

of the three motions to revoke. The trial court then adjudicated Stevens guilty of the

burglary offense and sentenced him to twenty years’ confinement in the Texas Department

of Criminal Justice-Institutional Division. The trial court also revoked Stevens’ community

supervision in the other two cases. Again, all of his sentences were ordered to run

2 Appellate cause num ber 13-08-00572-CR.

3 Appellate cause num ber 13-08-00573-CR.

2 concurrently. Stevens now appeals each of the three cases. We consider the appeals

together and affirm.

I. ANDERS BRIEF

Stevens’ court-appointed 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 that “he finds the appeal to be wholly frivolous.” See Anders v. California, 386 U.S.

738 (1967). Counsel reviews the merits of five issues that could arguably be supported on

appeal: (1) whether Stevens was “illegally placed on Probation” in trial court cause number

08-CR-17-G; (2) whether Stevens’ conditions of probation were “unlawful delegations of

authority”; (3) whether Stevens was afforded due process of law at his revocation hearing;

(4) whether the evidence was sufficient to establish that Stevens violated the conditions

of his probation; and (5) whether Stevens was “lawfully sentenced following his revocation

of probation.” Counsel concludes, however, that all five issues lack merit and that any

appeal in this case would be frivolous. See id. Counsel’s brief meets the requirements of

Anders as it presents a professional evaluation showing why there are no arguable

grounds for advancing an appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex.

Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim.

App. 1991) (en banc).

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

1978), 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 has found no arguable grounds to advance on appeal, (2) served a copy of the

3 brief and motion to withdraw on appellant, and (3) informed appellant of his right to review

the record and to file a pro se response.4 See Anders, 386 U.S. at 744; Stafford, 813

S.W.2d at 510 n.3. More than an adequate time has passed, and no pro se response has

been filed. 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 record 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

appeals met the requirements of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813

S.W.2d at 509. Accordingly, we affirm the judgments of the trial court.

III. MOTION TO WITHDRAW

In accordance with Anders, counsel has filed a motion to withdraw. 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

4 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) (orig. proceeding) (quoting W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App.–W aco 1997, no pet.)).

4 brief showing the appellate court that the appeal is frivolous.”) (citations omitted)). We

grant the motion to withdraw.

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

a copy of the opinion and judgment to Stevens and advise him of his right to file a petition

for discretionary review.5 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). Memorandum Opinion delivered and filed this the 4th day of June, 2009.

5 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 m ust 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.