Leonard White A/K/A Leonard White Jr. v. State

• Court: Court of Appeals of Texas
• Decided: August 9, 2012
• Docket: 13-11-00662-CR
• Status: Published

Opinion

NUMBER 13-11-00662-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

LEONARD WAYNE WHITE A/K/A Appellant, LEONARD WHITE JR.,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 252nd District Court of Jefferson County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Vela Memorandum Opinion by Justice Garza1 Appellant, Leonard Wayne White a/k/a Leonard White Jr., was indicted for

aggravated sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i),

(2)(B) (West Supp. 2011). Pursuant to a plea bargain, appellant pleaded guilty to the

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). lesser-included offense of injury to a child. See id. § 22.04 (West Supp. 2011). The trial

court deferred adjudication of appellant’s guilt, assessed a $1,000 fine, and placed him

on community supervision for six years. See TEX. CODE CRIM. PROC. ANN. art. 42.12, §

5 (West Supp. 2011).

The State later filed a motion to revoke appellant’s community supervision;

although appellant pleaded “true” to several of the State’s allegations, the trial court

continued appellant on community supervision. The State later filed a second motion to

revoke appellant’s community supervision; after appellant pleaded “true” to several of

the State’s allegations, the trial court revoked appellant’s community supervision,

adjudicated him guilty, and sentenced him to ten years’ imprisonment. See TEX. PENAL

CODE ANN. § 12.34 (West 2011) (providing punishment range for third-degree felony as

two to ten years’ imprisonment and $10,000 fine). However, on appellant’s motion to

reconsider, the trial court vacated its judgment, reinstated appellant’s community

supervision, and extended the period of community supervision for two years.

On July 29, 2011, the State filed another motion to revoke appellant’s community

supervision, alleging several violations of his community supervision. Appellant pleaded

“true” to one of the State’s allegations. The trial court revoked appellant’s community

supervision, adjudicated him guilty, and sentenced him to ten years’ imprisonment.

I. ANDERS BRIEF

Appellant’s 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 concluded that there is no reversible error. See Anders v. California, 386 U.S. 738

(1967); High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978).

2 Counsel has informed this Court that he has (1) examined the record and has found no

arguable grounds to advance on appeal, (2) served copies of the brief and motion to

withdraw on appellant, and (3) 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 v. State, 813 S.W.2d

503, 510 n.3 (Tex. Crim. App. 1991). More than an adequate time has passed, and no

pro se response has been filed. See In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex.

Crim. App. 2008).

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488

U.S. 75, 80 (1988). We have reviewed the entire record and counsel’s brief, and find

that the appeal is wholly frivolous and without merit. 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 it considered the issues raised in the brief 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.”); 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 counsel has filed a motion to withdraw as

his appellate counsel. See Anders, 386 U.S. at 744; see also In re Schulman, 252

2 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 S.W.3d at 408 n.17 (citing 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.”) (citations omitted)). We grant the motion to withdraw.

We order that counsel must, within five days of the date of this opinion, send a

copy of the opinion and judgments to appellant and 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).

DORI CONTRERAS GARZA Justice

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

Delivered and filed the 9th day of August, 2012.

3 No substitute counsel will be appointed. Should appellant wish to seek further review of these cases 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 the clerk of the Texas Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review must comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See id. R. 68.4.