Kelly Cobb v. State

• Court: Court of Appeals of Texas
• Decided: April 10, 2019
• Docket: 10-18-00364-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-18-00364-CR

KELLY COBB, Appellant v.

THE STATE OF TEXAS, Appellee

From the 77th District Court Freestone County, Texas Trial Court No. 18-042-CR

MEMORANDUM OPINION

Appellant Kelly Cobb confessed to the charge of driving while intoxicated—third

or more (habitual) and was sentenced to a term of incarceration of forty years. Cobb

appeals her conviction and sentence. We affirm the trial court’s judgment.

Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d

493 (1967), Cobb’s court-appointed appellate counsel filed a brief and 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. 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, 406 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).

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

1978), Cobb’s counsel has carefully discussed why, under controlling authority, there is

no reversible error in the trial court’s judgment. Counsel has informed this Court that he

has: (1) examined the record and found no arguable grounds to advance on appeal; (2)

served a copy of the brief and counsel’s motion to withdraw on Cobb; and (3) informed

Cobb of her right to review the record and to file a pro se response.1 See Anders, 386 U.S.

at 744, 87 S.Ct. at 1400; Stafford, 813 S.W.2d at 510 n.3; see also Schulman, 252 S.W.3d at 409

n.23. More than an adequate period of time has passed, and Cobb has not filed a pro se

response. See Schulman, 252 S.W.3d at 409.

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.

1Counsel has informed this Court that he has provided the record to Cobb. See Kelly v. State, 436 S.W.3d 313, 321-22 (Tex. Crim. App. 2014).

Cobb v. State Page 2 75, 80, 109 S.Ct. 346, 350, 102 L.Ed.2d 300 (1988). We have reviewed the entire record and

counsel’s brief and 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. The

judgment of the trial court is therefore affirmed.

In accordance with Anders, Cobb’s attorney has asked this Court for permission to

withdraw as counsel for Cobb. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; see also

Schulman, 252 S.W.3d at 408 n.17 (quoting 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 brief showing the

appellate court that the appeal is frivolous.”)). 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 Cobb and to advise her of her right to file a

petition for discretionary review.2 See TEX. R. APP. P. 48.4; see also Schulman, 252 S.W.3d

at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

2 No substitute counsel will be appointed. Should Cobb 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 must file a pro se petition for discretionary review. Any petition for discretionary review must

Cobb v. State Page 3 REX D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Justice Neill Affirmed Opinion delivered and filed April 10, 2019 Do not publish [CRPM]

be filed within thirty days from the date of this opinion or from the date the last timely motion for rehearing was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition and all copies of the petition for discretionary review must be filed with the Clerk of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3. 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; see also Schulman, 252 S.W.3d at 409 n.22.

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