Pamela Lavonne Stewart v. State

• Court: Court of Appeals of Texas
• Decided: August 3, 2011
• Docket: 10-11-00102-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-11-00102-CR

PAMELA LAVONNE STEWART, Appellant v.

THE STATE OF TEXAS, Appellee

From the 220th District Court Bosque County, Texas Trial Court No. 07-11-14199

MEMORANDUM OPINION

Pamela Lavonne Stewart pled true to four allegations that she had violated the

terms and conditions of her community supervision which had been imposed for the

offense of possession of methamphetamine, less than one gram. TEX. HEALTH & SAFETY

CODE ANN. § 481.115 (West 2010). Stewart pled not true to three allegations, and after a

revocation hearing, the trial court found two of those violations to be true. Stewart’s

community supervision was revoked, and Stewart was sentenced to twelve months

incarceration in the state jail. Stewart’s appellate counsel has 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. Counsel informed Stewart of the right

to file a pro se brief, but Stewart has not done so.

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

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

addressed the trial court’s jurisdiction, notice to Stewart of the proceedings, the

sufficiency of the evidence, and the effectiveness of the assistance of 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 403, 407 (Tex. Crim. App. 2008).

In reviewing Anders appeals, 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 a review of the briefs and the entire record in these appeals, we determine

that this appeal is wholly frivolous. See Bledsoe v. State, 178 S.W.3d at 826-27.

Accordingly, we affirm the trial court’s judgment.

Stewart v. State Page 2 Should Stewart wish to seek further review of this case by the Texas Court of

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

discretionary review or Stewart must 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 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 In re Schulman, 252 S.W.3d

403, 409 n.22 (Tex. Crim. App. 2008).

Counsel’s request that he be allowed to withdraw from representation of Stewart

is granted. Additionally, counsel must send Stewart a copy of our decision, remind

Stewart of her 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 In re Schulman, 252 S.W.3d at 409 n. 22.

TOM GRAY Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed August 3, 2011 Do not publish [CR25]

Stewart v. State Page 3