Nathan Don Wells v. State

• Court: Court of Appeals of Texas
• Decided: February 23, 2012
• Docket: 13-11-00147-CR
• Status: Published

Opinion

NUMBER 13-11-00147-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

NATHAN DON WELLS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 329th District Court of Wharton County, Texas.

MEMORANDUM OPINION Before Justices Rodriguez, Vela, and Perkes Memorandum Opinion by Justice Rose Vela Appellant, Nathan Don Wells, pleaded guilty to the offense of aggravated sexual

assault. See TEX. PENAL CODE ANN. § 22.021 (West Supp. 2011). Pursuant to a plea

agreement, the court deferred adjudication and placed appellant on community

supervision for four years. An original and amended motions to proceed with

adjudication of guilt and sentence were filed on May 30, 2006, August 2, 2006, and

October 3, 2007. Dismissal of the State’s motion for revocation of community

supervision was filed on February 27, 2008. Thereafter, additional motions to proceed

with adjudication of guilt and sentence were filed on April 4, 2008, April 14, 2008, May 27,

2008, and November 3, 2010. At the hearing on the motion to proceed with adjudication,

appellant pleaded not true to all of the allegations. At the conclusion of the hearing, the

trial court found that appellant had violated five conditions of community supervision, but

withheld its ruling on two allegations to allow appellant to present additional evidence. At

a later hearing, the trial court entered a finding of true on the two allegations it had

withheld ruling upon and, after concluding the punishment phase of the hearing,

adjudicated appellant guilty of aggravated sexual assault and sentenced him to fifteen

years’ confinement in the Institutional 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

2 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;

and (3) informed appellant of his right to review the record and to file a pro se response.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. 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.

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) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).

3 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 as well as 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. 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

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. 2 See TEX. R. APP. P. 48.4;

2 No substitute counsel will be appointed. Should appellant wish to seek further review of this

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).

ROSE VELA Justice

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

Delivered and filed the 23rd day of February, 2012.

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 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.