Larry Miller v. State

• Court: Court of Appeals of Texas
• Decided: November 5, 2009
• Docket: 13-09-00157-CR
• Status: Published

Opinion

NUMBER 13-09-157-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

LARRY MILLER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 94th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Yañez, Benavides, and Vela Memorandum Opinion by Justice Vela

Appellant, Larry Miller, entered a “open” plea of guilty to the offense of Possession

of a Controlled Substance - Penalty Group 1,1 enhanced as a repeat felony offender.2 The

1 See T EX . H EALTH & S AFETY C OD E A N N . § 481.102 (Vernon Supp. 2009).

2 See T EX . P EN AL C OD E A N N . § 29.03 (Vernon 2003). trial court sentenced Miller to six years’ confinement in the Institutional Division of the

Texas Department of Criminal Justice. Concluding that there are no meritorious issues for

appeal, Miller's appellate counsel has filed a brief in which he reviewed the merits, or lack

thereof, of the appeal. The State has not filed a brief. We affirm.

I. Compliance with Anders v. California

Appellant's court-appointed counsel filed an Anders brief in which he has concluded

that there are no appealable issues for this Court to consider. See Anders v. California,

386 U.S. 738, 744 (1967). Appellant's brief meets the requirements of Anders. See id. at

744-45; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978); see also

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).

In compliance with Anders, following his review of the Court's file and the transcripts, his

research, and his correspondence with appellant, counsel presented a professional

evaluation of the record including, among other things, a review of grand jury proceedings,

pre-trial motions, research and investigation, competency, sentencing, right to present

evidence during the guilt/innocence and punishment stages, and right to appeal. See

Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see

also High, 573 S.W.2d at 812.

Counsel has informed this Court that he has reviewed the record and concluded

there are no arguable grounds for reversal. He has also informed this Court that he

provided appellant with a copy of the transcripts in his case, a copy of the brief, and 2 notified appellant of his right to review the record and to file a pro se response to counsel's

brief and motion to withdraw.3 See 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; see also Anders, 386 U.S. at 744-45; Stafford,

813 S.W.2d at 509; High, 573 S.W.2d at 813.

II. Independent Review

The United States Supreme Court advised appellate courts that upon receiving a

"frivolous appeal" brief, they must "conduct ‘a full examination of all the proceedings to

decide whether the case is wholly frivolous.’" Penson v. Ohio, 488 U.S. 75, 80 (1988)

(quoting Anders, 386 U.S. at 744); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex.

App.–Corpus Christi 2002, no pet.). Accordingly, we have carefully reviewed the record

and have found nothing that would arguably support an appeal. See Bledsoe v. State, 178

S.W.3d 824, 826 (Tex. Crim. App. 2005); Stafford, 813 S.W.2d at 509. We agree with

counsel that the appeal is wholly frivolous and without merit. See Bledsoe, 178 S.W.3d

at 827-28 ("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 requirements of Texas Rule of Appellate

Procedure 47.1.").

III. Conclusion

The judgment of the trial court is affirmed. In accordance with Anders, appellant's

attorney has asked this Court for permission to withdraw as counsel for appellant. See

3 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) (quoting W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App.–W aco 1997, no pet.)). 3 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 "[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 his 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 judgment to appellant and

to advise appellant of his right to file a petition for discretionary review.4 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).

ROSE VELA Justice

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

Memorandum Opinion delivered and filed this 5th day of November, 2009.

4 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 should 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. 4