Otis Champ Allen v. State of Texas

• Court: Court of Appeals of Texas
• Decided: October 27, 2011
• Docket: 11-10-00336-CR
• Status: Published

Opinion

Opinion filed October 27, 2011

In The

Eleventh Court of Appeals __________

No. 11-10-00336-CR __________

OTIS CHAMP ALLEN, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 358th District Court

Ector County, Texas

Trial Court Cause No. D-35,627

MEMORANDUM OPINION After a bench trial, the trial court convicted Otis Champ Allen of possession of a controlled substance and assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of two years. Specifically, a consensual search of appellant revealed the presence of crack cocaine located within a fanny pack that appellant was wearing. We dismiss the appeal. Appellant’s court-appointed counsel has filed a motion to withdraw. The motion is supported by a brief in which counsel professionally and conscientiously examines the record and applicable law and states that he has concluded that the appeal is frivolous. Counsel has provided appellant with a copy of the brief and advised appellant of his right to review the record and file a response to counsel’s brief. A response has not been filed.1 Court-appointed counsel has complied with the requirements of Anders v. California, 386 U.S. 738 (1967); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); and Eaden v. State, 161 S.W.3d 173 (Tex. App.—Eastland 2005, no pet.). Following the procedures outlined in Anders and Schulman, we have independently reviewed the record, and we agree that the appeal is without merit and should be dismissed. Schulman, 252 S.W.3d at 409. We note that counsel has the responsibility to advise appellant that he may file a petition for discretionary review with the clerk of the Texas Court of Criminal Appeals seeking review by that court. TEX. R. APP. P. 48.4 (“In criminal cases, the attorney representing the defendant on appeal shall, within five days after the opinion is handed down, send his client a copy of the opinion and judgment, along with notification of the defendant’s right to file a pro se petition for discretionary review under Rule 68.”). Likewise, this court advises appellant that he may file a petition for discretionary review pursuant to TEX. R. APP. P. 68. The motion to withdraw is granted, and the appeal is dismissed.

PER CURIAM

October 27, 2011 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Kalenak, J.

1 By letter, this court granted appellant thirty days in which to exercise his right to file a response to counsel’s brief.