John Michael Bell v. State

• Court: Court of Appeals of Texas
• Decided: July 18, 2019
• Docket: 13-18-00045-CR
• Status: Published

Opinion

NUMBER 13-18-00045-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JOHN MICHAEL BELL, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 272nd District Court of Brazos County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Perkes Memorandum Opinion by Justice Hinojosa

Appellant John Michael Bell was found guilty by a jury of unlawful possession of a

firearm by a felon, a third-degree felony. See TEX. PENAL CODE ANN. § 46.04. The trial

court sentenced appellant to ten years’ imprisonment in the Texas Department of Criminal

Justice–Institutional Division. Appellant’s court-appointed counsel has filed an Anders

brief stating that there are no arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm. 1

I. ANDERS BRIEF

Pursuant to Anders v. California, appellant’s 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 has found no non-frivolous grounds for

appeal. See id. Counsel’s brief meets the requirements of Anders as it presents a

professional evaluation demonstrating why there are no arguable grounds to advance on

appeal. 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 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–Edinburg 2003, no pet.))); Stafford v. State, 813 S.W.2d 503,

510 n.3 (Tex. Crim. App. 1991).

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

Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 318–19 (Tex. Crim. App. 2014),

appellant’s counsel carefully discussed why, under controlling authority, there is no

reversible error in the trial court’s judgment. Counsel has informed this Court, in writing,

that counsel has: (1) notified appellant that counsel has filed an Anders brief and a

motion to withdraw; (2) provided appellant with copies of both pleadings; (3) informed

appellant of appellant’s rights to file a pro se response, 2 review the record preparatory to

1 This case has been transferred from the Tenth Court of Appeals in Waco to this Court pursuant

to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.

2 The Texas Court of Criminal Appeals has held that “the pro se response need not comply with 2 filing that response, and seek discretionary review if the court of appeals concludes that

the appeal is frivolous; and (4) provided appellant with a form motion for pro se access to

the appellate record, lacking only appellant’s signature and the date and including the

mailing address for the court of appeals, with instructions to file the motion within ten

days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 318–19; see also In re

Schulman, 252 S.W.3d at 409 n.23. Appellant requested, and has been provided, pro

se access to the appellate record. However, an adequate time has passed, and

appellant has not filed a pro se response.

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 entire record and counsel’s brief and found nothing

that would arguably support an appeal. 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 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.

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

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.)). 3 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.) (“[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 this opinion and this Court’s judgment to appellant and to advise

him 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).

IV. CONCLUSION

We affirm the trial court’s judgment. We further dismiss appellant’s motion for pro

se access to the appellate record as moot.

LETICIA HINOJOSA Justice

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

Delivered and filed the 18th day of July, 2019.

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 or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4. 4