Patrick Oneal Perkins A/K/A Patrick O'Neal Perkins A/K/A Patrick Oneal Perkins v. State

• Court: Court of Appeals of Texas
• Decided: February 16, 2012
• Docket: 13-11-00426-CR
• Status: Published

Opinion

NUMBER 13-11-00426-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

PATRICK ONEAL PERKINS A/K/A PATRICK O’NEAL PERKINS A/K/A PATRICK ONEAL PERKINS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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

MEMORANDUM OPINION1

Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion by Justice Rodriguez

1 This case is before this 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). Appellant Patrick Oneal Perkins a/k/a Patrick O’Neal Perkins a/k/a Patrick Oneal

Perkins entered a plea of guilty before the trial court to delivery of a controlled substance,

a second-degree felony, with an agreed plea bargain for a term of probation. See TEX.

HEALTH & SAFETY CODE ANN. ' 481.112 (West 2010). The trial court found appellant

guilty, assessed punishment at seven years in prison, suspended the sentence, and

placed appellant on probation for a period of seven years pursuant to the plea agreement.

Thereafter, the trial court determined that appellant had violated the terms of his

community supervision, revoked appellant's community supervision, and assessed

punishment at seven years' confinement in the Texas Department of Criminal Justice.

Determining that "the record presents no meritorious issues," counsel filed an

Anders brief in which he reviewed the merits, or lack thereof, of the appeal. We affirm

the judgment of the trial court.

I. COMPLIANCE WITH ANDERS

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

court-appointed appellate counsel has filed a brief with this Court stating that he has

diligently reviewed the record in this case and researched the law and has found no

reversible error by the trial court, fundamental or otherwise. Counsel's brief meets the

requirements of Anders as it presents a professional evaluation showing why there are no

non-frivolous grounds for advancing an appeal. See In re Schulman, 252 S.W.3d 403,

407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (AIn 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 2 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)

(en banc).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978), appellant's counsel has discussed why, under controlling authority, there are

no reversible errors in the trial court's judgment. Counsel has specifically noted that he

reviewed the indictment, pleadings, the probation order, the revocation proceeding, and

all other matters in the record and found no arguable grounds of error. Counsel has

informed this Court that he has provided appellant with a copy of the brief and has

informed appellant that he has the right to review the record and file a pro se response

raising any ground of error or complaint which he may desire.2 See Anders, 386 U.S. at

744; Stafford, 813 S.W.2d at 510 n.3. More than an adequate time has passed, and

appellant has not filed a pro se response.3 See In re Schulman, 252 S.W.3d at 409.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, this Court must conduct a full examination of all

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 we have

found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d

2 In the criminal context, the Texas Court of Criminal Appeals has held that "the pro se response [to a 'frivolous appeal' brief] 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 On December 13, 2011, this Court granted counsel's motion requesting that appellant be afforded thirty days in order to file a pro se response if he chose to do so. 3 824, 826-28 (Tex. Crim. App. 2005) (ADue 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. Accordingly, we affirm the

judgment of the trial court.

III. MOTION TO WITHDRAW

In accordance with Anders, counsel has filed a motion to withdraw. 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.) ("If 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 that was carried with the case on December 13, 2011.

Within five days of the date of this Court=s opinion, counsel is ordered to send a copy of

the opinion and judgment to appellant and to advise appellant of his right to pursue a

petition for 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).

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 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. See id. at R. 68.3, 68.7. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See id. at R. 68.4.

4 IV. CONCLUSION

The judgment of the trial court is affirmed.

NELDA V. RODRIGUEZ Justice

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

Delivered and filed the 16th day of February, 2012.