+
NUMBER 13-11-00424-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MARLON JERMAINE PUGH, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the Criminal District Court of Jefferson County, Texas.
MEMORANDUM OPINION Before Justices Rodriguez, Vela, and Perkes Memorandum Opinion by Justice Rodriguez Appellant Marlon Jermaine Pugh appeals from his conviction for the offense of
failure to comply with sex-offender registration requirements. See TEX. CODE CRIM.
PROC. ANN. art. 62.102(a), (b)(2) (West 2006). Pugh pleaded guilty to the offense and
was sentenced to ten years' community supervision and assessed a $1,000 fine. Approximately nineteen months after his plea and sentence, the trial court determined
that Pugh had violated the terms of his community supervision. The court revoked
Pugh's probation and sentenced him to ten years in the Institutional Division of the Texas
Department of Criminal Justice.
Concluding that the appeal in this case "is without merit and is frivolous," counsel
filed an Anders brief in which he reviewed the merits, or lack thereof, of the appeal. We
affirm as modified.
I. COMPLIANCE WITH ANDERS V. CALIFORNIA
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), Pugh's
court-appointed appellate counsel has filed a brief with this Court, stating that he has
"diligently reviewed the entire appeal record in this case and the law applicable thereto"
and in his professional opinion, he "can perceive no arguably meritorious issues from the
records in this cause." After discussing the revocation plea and proceeding, in
particular, counsel concludes that "the record reflects no reversible error . . . [and] there
are no grounds upon which an appeal can be predicated." See In re Schulman, 252
S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) ("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)
(en banc).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978), Pugh's counsel has, thus, carefully discussed why, under controlling
2 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 record, the brief, and counsel’s motion to withdraw on
Pugh, and (3) informed Pugh of his right to review the record and to file a pro se response
within thirty days.1 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.
Pugh filed a pro se brief on September 12, 2011. When appellate counsel files an
Anders brief and the appellant independently files a pro se brief, the court of appeals has
two choices: "[i]t may determine that the appeal is wholly frivolous and issue an opinion
explaining that it has reviewed the record and finds no reversible error. Or, it may
determine that arguable grounds for appeal exist and remand the cause to the trial court
so that new counsel may be appointed to brief the issues." Bledsoe v. State, 178 S.W.3d
824, 826-27 (Tex. Crim. App. 2005). We are not required to review the merits of each
claim raised in an Anders brief or a pro se response—rather, we must merely determine if
there are any arguable grounds for appeal. Id. at 827. If we so determine, we must
remand for appointment of new counsel. Id. Reviewing the merits raised in a pro se
brief would deprive an appellant of meaningful assistance of counsel. Id. Accordingly,
we will independently review the record to determine if there are any arguable grounds for
appeal.
II. INDEPENDENT REVIEW
1 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) (orig. proceeding) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)). 3 The United States Supreme Court has 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). We have carefully reviewed the record, counsel's brief, and Pugh's pro se
brief and have found nothing that would arguably support an appeal. See Bledsoe, 178
S.W.3d at 826; 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."). The only error in the
record is a typographical error in both the trial court's 2009 judgment of conviction and
2011 judgment revoking community supervision. The judgments list the statute for the
offense as sections "62.02/62.10 [of the] Penal Code"—no such sections exist. At the
time of Pugh's offense, the statute establishing the third-degree felony offense of failure to
comply with sex offender registration requirements was Texas Code of Criminal
Procedure article 62.102(a) and (b)(2). See TEX. CODE CRIM. PROC. ANN. art. 62.102(a),
(b)(2). Accordingly, because we have the necessary data and evidence for reformation,
we modify the trial court's judgments to reflect the correct article of the code of criminal
procedure—article 62.102(a) and (b)(2). See id.; see also Bigley v. State, 865 S.W.2d
26, 27 (Tex. Crim. App .1993). We affirm the judgment of revocation as modified.
III. MOTION TO WITHDRAW
In accordance with Anders, Pugh's attorney has asked this Court for permission to
withdraw as counsel for Pugh. See Anders, 386 U.S. at 744; see also In re Schulman,
4 252 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
Free access — add to your briefcase to read the full text and ask questions with AI
+
NUMBER 13-11-00424-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MARLON JERMAINE PUGH, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the Criminal District Court of Jefferson County, Texas.
MEMORANDUM OPINION Before Justices Rodriguez, Vela, and Perkes Memorandum Opinion by Justice Rodriguez Appellant Marlon Jermaine Pugh appeals from his conviction for the offense of
failure to comply with sex-offender registration requirements. See TEX. CODE CRIM.
PROC. ANN. art. 62.102(a), (b)(2) (West 2006). Pugh pleaded guilty to the offense and
was sentenced to ten years' community supervision and assessed a $1,000 fine. Approximately nineteen months after his plea and sentence, the trial court determined
that Pugh had violated the terms of his community supervision. The court revoked
Pugh's probation and sentenced him to ten years in the Institutional Division of the Texas
Department of Criminal Justice.
Concluding that the appeal in this case "is without merit and is frivolous," counsel
filed an Anders brief in which he reviewed the merits, or lack thereof, of the appeal. We
affirm as modified.
I. COMPLIANCE WITH ANDERS V. CALIFORNIA
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), Pugh's
court-appointed appellate counsel has filed a brief with this Court, stating that he has
"diligently reviewed the entire appeal record in this case and the law applicable thereto"
and in his professional opinion, he "can perceive no arguably meritorious issues from the
records in this cause." After discussing the revocation plea and proceeding, in
particular, counsel concludes that "the record reflects no reversible error . . . [and] there
are no grounds upon which an appeal can be predicated." See In re Schulman, 252
S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) ("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)
(en banc).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978), Pugh's counsel has, thus, carefully discussed why, under controlling
2 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 record, the brief, and counsel’s motion to withdraw on
Pugh, and (3) informed Pugh of his right to review the record and to file a pro se response
within thirty days.1 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.
Pugh filed a pro se brief on September 12, 2011. When appellate counsel files an
Anders brief and the appellant independently files a pro se brief, the court of appeals has
two choices: "[i]t may determine that the appeal is wholly frivolous and issue an opinion
explaining that it has reviewed the record and finds no reversible error. Or, it may
determine that arguable grounds for appeal exist and remand the cause to the trial court
so that new counsel may be appointed to brief the issues." Bledsoe v. State, 178 S.W.3d
824, 826-27 (Tex. Crim. App. 2005). We are not required to review the merits of each
claim raised in an Anders brief or a pro se response—rather, we must merely determine if
there are any arguable grounds for appeal. Id. at 827. If we so determine, we must
remand for appointment of new counsel. Id. Reviewing the merits raised in a pro se
brief would deprive an appellant of meaningful assistance of counsel. Id. Accordingly,
we will independently review the record to determine if there are any arguable grounds for
appeal.
II. INDEPENDENT REVIEW
1 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) (orig. proceeding) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)). 3 The United States Supreme Court has 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). We have carefully reviewed the record, counsel's brief, and Pugh's pro se
brief and have found nothing that would arguably support an appeal. See Bledsoe, 178
S.W.3d at 826; 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."). The only error in the
record is a typographical error in both the trial court's 2009 judgment of conviction and
2011 judgment revoking community supervision. The judgments list the statute for the
offense as sections "62.02/62.10 [of the] Penal Code"—no such sections exist. At the
time of Pugh's offense, the statute establishing the third-degree felony offense of failure to
comply with sex offender registration requirements was Texas Code of Criminal
Procedure article 62.102(a) and (b)(2). See TEX. CODE CRIM. PROC. ANN. art. 62.102(a),
(b)(2). Accordingly, because we have the necessary data and evidence for reformation,
we modify the trial court's judgments to reflect the correct article of the code of criminal
procedure—article 62.102(a) and (b)(2). See id.; see also Bigley v. State, 865 S.W.2d
26, 27 (Tex. Crim. App .1993). We affirm the judgment of revocation as modified.
III. MOTION TO WITHDRAW
In accordance with Anders, Pugh's attorney has asked this Court for permission to
withdraw as counsel for Pugh. See Anders, 386 U.S. at 744; see also In re Schulman,
4 252 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 that was carried with the case on August 19, 2011. Within five days
of the date of this Court’s opinion, counsel is ordered to send a copy of the opinion and
judgment to Pugh and to advise him of his right to file a petition for discretionary review.2
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).
NELDA V. RODRIGUEZ Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 13th day of October, 2011.
2 No substitute counsel will be appointed. Should Pugh wish to seek further review of this case 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 or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Effective September 1, 2011, any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4. 5