NUMBER 13-14-00165-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
KATHERINE GAYNOR, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court of San Patricio County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Longoria Memorandum Opinion by Justice Longoria Appellant, Katherine Graynor, pleaded guilty to one count of injury to a child, a
second-degree felony, pursuant to a plea agreement.1 See TEX. PENAL CODE ANN.
§ 22.04(a) (West, Westlaw through 2013 3d C.S.). The agreement called for the trial
court judge to assess punishment. Following a hearing, the trial court judge assessed
punishment at sixteen years’ imprisonment in the Texas Department of Criminal Justice—
Institutional Division and a $10,000 fine. As discussed below, appellant’s court-appointed
counsel has filed a motion to withdraw accompanied by an Anders brief. See Anders v.
California, 386 U.S. 738, 744 (1967). We affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
has filed a brief and a motion to withdraw with this Court, stating that his review of the
record yielded no grounds of error upon which an appeal can be predicated. 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 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).
1 The State agreed to reduce the charge from a first-degree felony to a second-degree felony by
moving to amend the indictment to allege the mental state of “recklessly.” See TEX. PENAL CODE ANN. § 22.04(e) (West, Westlaw through 2013 3d C.S.) (providing that an offense under section 22.04 is a first- degree felony if engaged in “intentionally or knowingly” but a second-degree felony if engaged in “recklessly”).
2 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, 319 (Tex. Crim. App. 2014), appellant’s
counsel carefully discussed why, under controlling authority, there is no reversible error
in the trial court's judgment.2 Counsel has informed this Court, in writing, that counsel
has: (1) notified the appellant that counsel has filed an Anders brief and a motion to
withdraw; (2) provided the appellant with copies of both pleadings; (3) informed the
appellant of her rights to file a pro se response,3 review the record preparatory to filing
that response, and seek discretionary review if the Court concludes that the appeal is
frivolous; and (4) provided the appellant with a form motion for pro se access to the
appellate record, lacking only the 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 319; 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 time
has passed, and appellant has not filed a pro se motion for access to the appellate record
or a motion of extension of time to do so. No pro se response was filed, and the State
has also not filed a brief.
2 Counsel informed us that he specifically considered: (1) whether appellant’s plea complied with
the requirements of article 26.13 of the code of criminal procedure, see TEX. CODE CRIM. PROC. ANN. § 26.13 (West, Westlaw through 2013 3d C.S.); (2) whether the punishment imposed by the court was proper; and (3) whether appellant could mount a viable claim for ineffective assistance of counsel, see Strickland v. Washington, 466 U.S. 668, 687 (1984), but concluded that none of these issues were meritorious. We agree.
3 The Texas Court of Criminal Appeals has held that “the 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) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
3 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 we have
found nothing that would arguably support an appeal. 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 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. We have found no reversible
error in the record. We accordingly 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.) (“[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 her of
her right to file a petition for discretionary review. 4 See TEX. R. APP. P. 48.4; see also In
4 No substitute counsel will be appointed. Should appellant wish to seek further review of this case
by the Texas Court of Criminal Appeals, she must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review.
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NUMBER 13-14-00165-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
KATHERINE GAYNOR, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court of San Patricio County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Longoria Memorandum Opinion by Justice Longoria Appellant, Katherine Graynor, pleaded guilty to one count of injury to a child, a
second-degree felony, pursuant to a plea agreement.1 See TEX. PENAL CODE ANN.
§ 22.04(a) (West, Westlaw through 2013 3d C.S.). The agreement called for the trial
court judge to assess punishment. Following a hearing, the trial court judge assessed
punishment at sixteen years’ imprisonment in the Texas Department of Criminal Justice—
Institutional Division and a $10,000 fine. As discussed below, appellant’s court-appointed
counsel has filed a motion to withdraw accompanied by an Anders brief. See Anders v.
California, 386 U.S. 738, 744 (1967). We affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
has filed a brief and a motion to withdraw with this Court, stating that his review of the
record yielded no grounds of error upon which an appeal can be predicated. 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 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).
1 The State agreed to reduce the charge from a first-degree felony to a second-degree felony by
moving to amend the indictment to allege the mental state of “recklessly.” See TEX. PENAL CODE ANN. § 22.04(e) (West, Westlaw through 2013 3d C.S.) (providing that an offense under section 22.04 is a first- degree felony if engaged in “intentionally or knowingly” but a second-degree felony if engaged in “recklessly”).
2 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, 319 (Tex. Crim. App. 2014), appellant’s
counsel carefully discussed why, under controlling authority, there is no reversible error
in the trial court's judgment.2 Counsel has informed this Court, in writing, that counsel
has: (1) notified the appellant that counsel has filed an Anders brief and a motion to
withdraw; (2) provided the appellant with copies of both pleadings; (3) informed the
appellant of her rights to file a pro se response,3 review the record preparatory to filing
that response, and seek discretionary review if the Court concludes that the appeal is
frivolous; and (4) provided the appellant with a form motion for pro se access to the
appellate record, lacking only the 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 319; 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 time
has passed, and appellant has not filed a pro se motion for access to the appellate record
or a motion of extension of time to do so. No pro se response was filed, and the State
has also not filed a brief.
2 Counsel informed us that he specifically considered: (1) whether appellant’s plea complied with
the requirements of article 26.13 of the code of criminal procedure, see TEX. CODE CRIM. PROC. ANN. § 26.13 (West, Westlaw through 2013 3d C.S.); (2) whether the punishment imposed by the court was proper; and (3) whether appellant could mount a viable claim for ineffective assistance of counsel, see Strickland v. Washington, 466 U.S. 668, 687 (1984), but concluded that none of these issues were meritorious. We agree.
3 The Texas Court of Criminal Appeals has held that “the 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) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
3 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 we have
found nothing that would arguably support an appeal. 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 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. We have found no reversible
error in the record. We accordingly 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.) (“[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 her of
her right to file a petition for discretionary review. 4 See TEX. R. APP. P. 48.4; see also In
4 No substitute counsel will be appointed. Should appellant wish to seek further review of this case
by the Texas Court of Criminal Appeals, she 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
4 re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim.
App. 2006).
NORA L. LONGORIA Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 13th day of November, 2014.
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 Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4.