Michael Anshun Walker v. State

• Court: Court of Appeals of Texas
• Decided: August 25, 2010
• Docket: 10-10-00022-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-10-00022-CR

MICHAEL ANSHUN WALKER, Appellant v.

THE STATE OF TEXAS, Appellee

From the 13th District Court Navarro County, Texas Trial Court No. 30597

MEMORANDUM OPINION

Michael Anshun Walker was convicted of possession of a controlled substance

with the intent to deliver, within a drug-free zone. TEX. HEALTH & SAFETY CODE ANN. §§

481.112(a), (d); 481.134(c) (Vernon 2010). He was sentenced to 65 years in prison and

assessed a $10,000 fine. We affirm.

Walker’s appellate counsel filed an Anders brief and a motion to withdraw as

counsel. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

Counsel concludes that the appeal is frivolous. Walker was informed of the right to file

a pro se response to his counsel’s Anders brief. Walker attempted to file a response; however, it was not properly served. Walker was given an opportunity to correct that

deficiency but did not do so. Because Walker did not provide proper proof of service,

his response was stricken.

Counsel's brief evidences a professional evaluation of the record for error, and

we conclude that counsel performed the duties required of appointed counsel. See

Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also

In re Schulman, 252 S.W.3d at 407.

In reviewing an Anders appeal, we must, "after a full examination of all the

proceedings, . . . decide whether the case is wholly frivolous." Anders at 744; accord

Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991); Coronado v. State, 996

S.W.2d 283, 285 (Tex. App.—Waco 1999, order) (per curiam), disp. on merits, 25 S.W.3d

806 (Tex. App.—Waco 2000, pet. ref'd). An appeal is "wholly frivolous" or "without

merit" when it "lacks any basis in law or fact." McCoy v. Court of Appeals, 486 U.S. 429,

439 n.10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988). Arguments are frivolous when they

"cannot conceivably persuade the court." McCoy, 486 U.S. at 436. An appeal is not

wholly frivolous when it is based on "arguable grounds." Stafford, 813 S.W.2d at 511.

After reviewing the brief and the entire record in this appeal, we determine the

appeal to be wholly frivolous. See Bledsoe v. State, 178 S.W.3d at 826-27. Accordingly,

we affirm the trial court's judgment.

Should Walker wish to seek further review of this case by the Texas Court of

Criminal Appeals, Walker must either retain an attorney to file a petition for

discretionary review or Walker must file a pro se petition for discretionary review. Any

Walker v. State Page 2 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 this

Court, after which it will be forwarded to the Texas Court of Criminal Appeals along

with the rest of the filings in this case. See TEX. R. APP. P. 68.3. Any petition for

discretionary review should comply with the requirements of Rule 68.4 of the Texas

Rules of Appellate Procedure. See TEX. R. APP. P. 68.4. See also In re Schulman, 252

S.W.3d 403, 409 n.22 (Tex. Crim. App. 2008) (citing Glover v. State, No. 06-07-00060-CR,

2007 Tex. App. LEXIS 9162 (Tex. App.—Texarkana Nov. 20, 2007, pet. ref'd) (not

designated for publication).

Counsel's request that she be allowed to withdraw from representation of Walker

is granted. Additionally, counsel must send Walker a copy of our decision, notify

Walker of his right to file a pro se petition for discretionary review, and send this Court

a letter certifying counsel's compliance with Texas Rule of Appellate Procedure 48.4.

TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 409 n. 22.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed August 25, 2010 Do not publish [CR25]

Walker v. State Page 3