Micah Allen Walker A/K/A Micah Allen Walker v. State

• Court: Court of Appeals of Texas
• Decided: October 20, 2011
• Docket: 13-11-00470-CR
• Status: Published

Opinion

NUMBER 13-11-470-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MICAH ALLEN WALKER A/K/A MICAH ALLEN WALKER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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

MEMORANDUM OPINION Before Justices Rodriguez, Vela, and Perkes Memorandum Opinion by Justice Vela Appellant, Micah Allen Walker a/k/a Micah Allen Walker, pleaded guilty to the

offense of possession of a controlled substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.116 (West 2010).1 The trial court sentenced appellant to two years‘ confinement in

the state jail division of the Texas Department of Criminal Justice. Appellant timely

perfected this appeal, and as discussed below, his court-appointed counsel filed an

Anders brief. We affirm.

I. ANDERS BRIEF

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

court-appointed appellate counsel filed a brief and a motion to withdraw with this Court,

stating that his review of the record yielded no grounds of error upon which an appeal can

be predicated. 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), appellant‘s counsel has carefully discussed why, under controlling authority,

there are no reversible 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 appellant;

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).

2 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, 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

appellant 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, 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,

827–28 (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 509.3 There is no reversible error

in the record. Accordingly, the judgment of the trial court is affirmed.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant‘s attorney asked this Court for permission to

withdraw as counsel for appellant. See Anders, 386 U.S. at 744; see also In re

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 Today, the Court released an opinion in a companion case, No. 13-11-00418-CR, wherein we noted that the trial court's oral pronouncement ordering the sentence to run consecutively with this case was improper. The written judgment in both causes orders the sentences to run concurrently. Because the written judgment is correct, for reasons stated in No. 13-11-00418-CR, there is no error in the trial court's judgment.

3 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.) (―[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 this opinion and this Court‘s judgment to appellant and to

advise him of his right to file a petition for discretionary review.4 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).

IV. CONCLUSION

The judgment of the trial court is affirmed.

Rose Vela Justice

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

Delivered and filed the 20th day of October, 2011.

4 No substitute counsel will be appointed. Should appellant 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. 4