Jimmy Evans Gore v. State

• Court: Court of Appeals of Texas
• Decided: July 28, 2011
• Docket: 13-11-00201-CR
• Status: Published

Opinion

NUMBER 13-11-00201-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

JIMMY EVANS GORE,                                                             Appellant,

v.

THE STATE OF TEXAS,                                                       Appellee.

On appeal from the 252nd District Court

of Jefferson County, Texas.

MEMORANDUM OPINION^[1]

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Rodriguez

            Appellant Jimmy Evans Gore appeals from his conviction for the offense of aggravated robbery.  See Tex. Penal Code Ann. ' 29.03 (West 2003).  On November 5, 2007, the trial court assessed appellant's punishment at ten years' deferred adjudication probation.  On February 14, 2011, at a revocation hearing, appellant pleaded true to four probation violations.  The trial court accepted appellant's pleas of true, revoked his unadjudicated probation, found appellant guilty of the offense of aggravated robbery, sentenced him to twenty-five years' confinement in prison, and granted appellant credit toward his sentence for all time to which he was entitled by law. 

Concluding that "there are no grounds upon which an appeal can be predicated," counsel filed an Anders brief in which he reviewed the merits, or lack thereof, of the appeal.  We affirm the judgment of the trial court.

I.  Compliance with Anders

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 he has diligently reviewed the entire appellate record and has concluded that an appeal from the judgment and sentence is without merit and frivolous because the record reflects no reversible error.  Counsel=s brief sets out, in great detail, relevant portions of the record that may provide potentially appealable issues.  See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (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. 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), appellant's counsel has carefully discussed why, under controlling authority, there is no error in the trial court's judgment and why there are no issues for appeal.  Counsel certified to this Court that he served a copy of his motion to withdraw, its supporting brief, and other required notices to appellant by certified mail and that he has informed appellant of his right to review the record and to file a pro se response.^[2]  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.  More than an adequate period of time has passed, and appellant has not filed a pro se response.  See In re Schulman, 252 S.W.3d at 409.

II.  Independent Review

Upon receiving an Anders brief, this Court must conduct a full examination of all 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 we 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.

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.  Within five days of the date of this Court=s opinion, counsel is ordered to send a copy of the opinion and the judgment to appellant and to advise appellant of his right to file a petition for discretionary review.^[3]  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).

                                                                                                             NELDA V. RODRIGUEZ

                                                                                                             Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Delivered and filed the

28th day of July, 2011.

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^[1] This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to an order issued by the Supreme Court of Texas.  See Tex. Gov't Code Ann. § 73.001 (West 2005).

^[2] 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) (orig. proceeding) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)).

^[3] 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 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 should comply with the requirements of rule 68.4 of the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 68.4.