Malcolm Carter v. State

• Court: Court of Appeals of Texas
• Decided: July 20, 2006
• Docket: 13-04-00610-CR
• Status: Published

Opinion

                              NUMBER 13-04-610-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG 

MALCOLM O. CARTER,                                                                 Appellant,

v.

THE STATE OF TEXAS,                                                                 Appellee.

On appeal from the 105th District Court of Kleberg County, Texas.

MEMORANDUM OPINION

                         Before Justices Hinojosa, Yañez, and Garza

                            Memorandum Opinion by Justice Yañez

On June 12, 2001, pursuant to a plea agreement, appellant, Malcolm O. Carter, pleaded nolo contendere to the offense of aggravated assault.^[1]  The trial court deferred adjudication and placed appellant on community supervision for ten years.  On July 30, 2004, the State filed an amended motion to revoke community supervision and adjudicate guilt.  At the September 30, 2004 hearing, appellant pleaded Atrue@ to fourteen of the State=s allegations in the motion to revoke.  The trial court adjudicated appellant guilty, revoked his community supervision, and sentenced him to ten years= imprisonment in the Institutional Division of the Texas Department of Criminal Justice.  Appellant=s counsel has filed a brief with this Court asserting there is no basis for appeal.^[2]  We agree, and affirm the trial court=s judgment.

Anders Brief

According to counsel=s brief, she has reviewed the clerk=s record and reporter=s record and has concluded that appellant=s appeal is frivolous and without merit.^[3]  The brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal.^[4]  In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978), counsel has carefully discussed why, under controlling authority, there are no errors in the trial court=s judgment.  In the brief, appellant=s counsel states that she has informed appellant of his right to review the appellate record and to file a pro se brief.^[5]  No such brief has been filed.

Upon receiving a Afrivolous appeal@ brief, the appellate courts must conduct Aa full examination of all the proceedings to decide whether the case is wholly frivolous.@^[6]  We have carefully reviewed the appellate record and counsel=s brief.  We agree with appellant=s counsel that the appeal is wholly frivolous and without merit.^[7]  Accordingly, we affirm the judgment of the trial court.    

                                                Motion to Withdraw

In accordance with Anders, counsel has asked permission to withdraw as counsel for appellant.^[8]  An appellate court may grant counsel=s motion to withdraw filed in connection with an Anders brief.^[9]  We grant counsel=s motion to withdraw.

We order counsel to advise appellant promptly of the disposition of this case and the availability of discretionary review.^[10] 

_______________________

LINDA REYNA YAÑEZ,

Justice

Do not publish.                     

Tex. R. App. P. 47.2(b)

Memorandum opinion delivered and

filed this the 20th day of July, 2006.

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^[1] See Tex. Pen. Code Ann.' 22.02 (Vernon Supp. 2005).

^[2] See Anders v. California, 386 U.S. 738, 744 (1967).

^[3] See id.  

^[4] See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc).

^[5] See Sowels v. State, 45 S.W.3d 690, 693 (Tex. App.BWaco 2001, no pet.). 

^[6] Penson v. Ohio, 488 U.S. 75, 80 (1988); see Garza v. State, 126 S.W.3d 312, 313 (Tex. App.BCorpus Christi 2004, no pet.). 

^[7] See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005).

^[8] See Anders, 386 U.S. at 744.

^[9] Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511 (noting that Anders brief should be filed with request for withdrawal from case). 

^[10] See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).