Ricky Donnell Walker v. State

• Court: Court of Appeals of Texas
• Decided: July 31, 2018
• Docket: 07-17-00107-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-17-00107-CR

RICKY DONNELL WALKER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 54th District Court McLennan County, Texas1 Trial Court No. 2016-150-C2, Honorable Matt Johnson, Presiding

July 31, 2018

MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

On February 27 and 28, 2017, appellant, Ricky Donnell Walker, was tried for the

offense of possession of prohibited substances in a correctional facility. 2 Appellant pled

not guilty and the case proceeded to a jury trial. After hearing evidence, the jury found

1 Pursuant to the Texas Supreme Court docket equalization efforts, this case was transferred to

this Court from the Tenth Court of Appeals. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). Should a conflict exist between precedent of the Tenth Court of Appeals and this Court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3.

2 See TEX. PENAL CODE ANN. § 38.11 (West Supp. 2017). appellant guilty and, after a brief punishment hearing, sentenced appellant to fifteen

years’ incarceration in the Institutional Division of the Texas Department of Criminal

Justice. Appellant timely filed his notice of appeal. We affirm.

Appellant’s court-appointed appellate counsel filed a motion to withdraw from the

representation supported by an Anders brief. See Anders v. California, 386 U.S. 738, 87

S. Ct. 1396, 18 L. Ed. 2d 493 (1967). In support of his motion to withdraw, counsel

certifies that he has diligently reviewed the record and, in his opinion, the record reflects

no reversible error upon which an appeal can be predicated. Id. at 744; In re Schulman,

252 S.W.3d 403, 406 (Tex. Crim. App. 2008). In compliance with High v. State, 573

S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), counsel has discussed why, under

the controlling authorities, there are no reversible errors in the trial court’s judgment.

Counsel notified appellant by letter of his motion to withdraw; provided him a copy of the

motion, Anders brief, and appellate record; and informed him of his right to file a pro se

response. See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014) (specifying

appointed counsel’s obligations on the filing of a motion to withdraw supported by an

Anders brief). By letter, this Court also advised appellant of his right to file a pro se

response to counsel’s Anders brief. Appellant has filed a pro se response. The State did

not file a brief.

In the present case, appellant was found guilty of the offense of possession of

prohibited substances in a correctional facility, and sentenced to fifteen years’

incarceration. By his Anders brief, counsel discusses areas in the record where reversible

error may have occurred but concludes that the appeal is frivolous. We have

independently examined the record to determine whether there are any non-frivolous

2 issues that were preserved in the trial court which might support this appeal but, like

counsel, we have found no such issues. See Penson v. Ohio, 488 U.S. 75, 80, 109 S.

Ct. 346, 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d at 409; Gainous v. State,

436 S.W.2d 137, 138 (Tex. Crim. App. 1969).

After carefully reviewing the appellate record, counsel’s brief, and appellant’s pro

se response, we conclude there are no plausible grounds for appellate review. We

therefore affirm the trial court’s judgment and grant counsel’s motion to withdraw.3 See

TEX. R. APP. P. 43.2(a).

Judy C. Parker Justice

Do not publish.

3 Even though appellant was informed of his right to file a pro se petition for discretionary review upon execution of the Trial Court's Certification of Defendant's Right of Appeal, counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure, which provides that counsel shall within five days after this opinion is handed down, send appellant a copy of the opinion and judgment together with notification of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408 n.22 & 411 n.35. This duty is an informational one, not a representational one. It is ministerial in nature, does not involve legal advice, and exists after the court of appeals has granted counsel's motion to withdraw. Id. at 411 n.33.