Melvin A. Allen v. State

• Court: Court of Appeals of Texas
• Decided: March 14, 2013
• Docket: 13-12-00457-CR
• Status: Published

Opinion

NUMBER 13-12-00457-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MELVIN A. ALLEN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 396th District Court of Tarrant County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Perkes Memorandum Opinion by Justice Rodriguez Appellant Melvin A. Allen appeals from his conviction for criminal mischief,

$20,000 to $100,000, a third-degree felony. See TEX. PENAL CODE ANN. § 28.03(a)

(West 2011). Pursuant to a negotiated plea agreement, Allen pleaded guilty, and the

trial court deferred adjudication and placed him on probation for five years. The State filed a petition to revoke Allen’s probation, citing four violations. Allen pleaded true to all

four alleged violations. The trial court revoked his probation, found him guilty, and

sentenced him to five years in the Institutional Division of the Texas Department of

Criminal Justice. Allen appeals from this judgment.

Determining that there are no meritorious claims for appeal, counsel filed an

Anders brief in which he reviewed the merits, or lack thereof, of the appeal. We affirm

the judgment of the trial court.

I. COMPLIANCE WITH ANDERS

Pursuant to Anders v. California, Allen's counsel filed a brief stating that he has

thoroughly reviewed the transcript, the clerk’s file, the sentence received by Allen, and the

factual basis for the sentence, and that, in his opinion, there are no non-frivolous issues.

See 386 U.S. at 744–45. Counsel's brief meets the requirements of Anders as it

presents a professional evaluation showing why there are no non-frivolous grounds for

advancing an appeal. 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), Allen's counsel has carefully discussed why, under controlling authority, an

appeal from the judgment and sentence is without merit and frivolous because the record

2 reflects no reversible error and, in his opinion, this is a frivolous appeal. Counsel

specifically noted, from his review of the following, that he found no non-frivolous issues

regarding the following: (1) the indictment; (2) the bond; (3) appointed trial counsel; (4)

Allen’s arraignment; (5) his waiver of a jury trial; (6) his plea; (7) Allen’s deferred

adjudication; (8) the revocation hearing and resulting revocation and imposition of guilt;

(9) the sentence imposed; (10) prosecutorial conduct; (11) judicial conduct; (12)

counsel’s effective assistance; and (13) Allen’s right to appeal and his appointed

appellate counsel. Counsel has demonstrated that he has complied with the

requirements of Anders by (1) examining the record and finding no arguable grounds to

advance on appeal, (2) serving a copy of the brief and motion to withdraw on Allen, (3)

providing Allen with a copy of the reporter's record, (4) meeting with Allen and informing

him of counsel’s intent to file an Anders brief; and (5) informing Allen of his right to review

the record and to file a pro se response.1 See Anders, 386 U.S. at 744; Stafford v. State,

813 S.W.2d 503, 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. More than

an adequate time has passed, and Allen has not filed a pro se response. See In re

Schulman, 252 S.W.3d at 409.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, this Court must conduct a full examination of all

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 we have 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 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. Accordingly, we affirm the

judgment of the trial court.

III. MOTION TO WITHDRAW

In accordance with Anders, counsel has filed motions to withdraw. 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.) ("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 counsel's first and second motions to withdraw that were carried with the case on

January 17, 2013 and February 8, 2013, respectively. 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 pursue a petition for 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).

2 No substitute counsel will be appointed. Should appellant wish to seek 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 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 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. 4 IV. CONCLUSION

We affirm the judgment of the trial court.

NELDA V. RODRIGUEZ Justice

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

Delivered and filed the 14th day of March, 2013.