Lester J. Huffmaster v. State

• Court: Court of Appeals of Texas
• Decided: July 16, 2009
• Docket: 13-08-00692-CR
• Status: Published

Opinion

NUMBER 13-08-00692-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

LESTER J. HUFFMASTER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 377th District Court of Victoria County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela Memorandum Opinion by Justice Garza

On September 14, 2006, appellant, Lester J. Huffmaster, was charged by indictment

with a third offense of driving while intoxicated, a third-degree felony.1 See TEX . PENAL

CODE ANN . §§ 49.04 (Vernon 2003), 49.09(b)(2) (Vernon Supp. 2008). Pursuant to a plea

1 The indictm ent provided that Huffm aster had been twice convicted in Victoria County, Texas, of operating a m otor vehicle while intoxicated on Decem ber 3, 1998, and on August 16, 2001. See T EX . P ENAL C OD E A N N . § 49.09(b)(2) (Vernon Supp. 2008) (providing that an offense under section 49.04 of the penal code becom es a third-degree felony if the offender has been previously convicted two tim es of, am ong other things, operating a m otor vehicle while intoxicated). bargain, Huffmaster pleaded guilty to the offense. The trial court accepted the plea

bargain, sentenced Huffmaster to ten years’ incarceration in the Institutional Division of the

Texas Department of Criminal Justice, and imposed a $2,000 fine. The sentence was

suspended, and Huffmaster was placed on community supervision for a period of ten

years.

On April 18, 2008, the State filed its first amended motion to revoke Huffmaster’s

community supervision. In its motion, the State alleged that Huffmaster violated several

provisions of his community supervision, including making terroristic threats, missing his

curfew, drinking alcohol, driving multiple times while intoxicated, failing to pay court costs

and supervisory fees, failing to perform required community supervision hours, and failing

to have a “Deep Lung Breath Analysis Mechanism Device” on his car. The trial court

conducted a hearing on the State’s first amended motion to revoke on October 31, 2008.

At the hearing, Huffmaster, after being admonished, pleaded “true” to the majority of the

allegations contained in the State’s motion.2

The trial court concluded that Huffmaster had violated the terms and conditions of

his community supervision, revoked his community supervision, and reinstated the original

sentence of ten years’ confinement with a $2,000 fine.3 The trial court certified

Huffmaster’s right to appeal, and Huffmaster now brings this appeal. We affirm.

I. ANDERS BRIEF

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), Huffmaster’s

2 Huffm aster pleaded “not true” to m aking a terroristic threat, m issing his curfew, and driving m ultiple tim es while intoxicated.

3 The punishm ent range for a third-degree felony is “im prisonm ent in the institutional division for any term of not m ore than 10 years or less than 2 years” and a “fine not to exceed $10,000." Id. § 12.34 (Vernon 2003).

2 court-appointed appellate counsel has filed a brief with this Court, stating that his review

of the record yielded no grounds or error upon which an appeal can be predicated.

Though counsel presents six “issues” in his brief, counsel concludes that these “issues”

lack merit and that any appeal in this case would be frivolous. 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).

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

1978), Huffmaster's appellate counsel has carefully discussed why, under controlling

authority, there are no errors 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 Huffmaster, and

(3) informed Huffmaster of his right to review the record and to file a pro se response within

thirty days.4 See Anders, 386 U.S. at 744; 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 period of time has passed,

and Huffmaster has not filed a pro se response. See In re Schulman, 252 S.W.3d at 409.

4 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 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 have found

nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824,

826-28 (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, Huffmaster’s attorney has asked this Court for

permission to withdraw as counsel. 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.) (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 counsel’s 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 Huffmaster and to advise Huffmaster of his right to file a

petition for discretionary review.5 See TEX . R. APP. P. 48.4; see also In re Schulman, 252

5 No substitute counsel will be appointed. Should Huffm aster wish to seek further review of this case by the Texas C ourt 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

4 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). Memorandum Opinion delivered and filed this the 16th day of July, 2009.

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.