Robert Earl Jones v. State

• Court: Court of Appeals of Texas
• Decided: May 8, 2013
• Docket: 07-12-00396-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-12-0395-CR No. 07-12-0396-CR ________________________

ROBERT EARL JONES, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 320th District Court Potter County, Texas Trial Court Nos. 65,654-D & 65,655-D, Honorable Richard Dambold, Presiding

May 8, 2013

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Following open pleas of guilty, Appellant, Robert Earl Jones, was convicted of

delivery of cocaine in a drug-free zone in an amount of four grams or more but less than

200 in cause number 65,654-D and in cause number 65,655-D. 1 After pleading true to

the drug-free zone enhancement paragraphs, he was sentenced to concurrent twelve

1 TEX. HEALTH & SAFETY CODE ANN. § 481.134(c)(1) (W EST SUPP. 2012). year sentences. In presenting these appeals, counsel has filed an Anders 2 brief in

support of a motion to withdraw. We grant counsel=s motion and affirm.

In support of his motion to withdraw, counsel certifies he has conducted a

conscientious examination of the records and, in his opinion, the records reflect no

potentially plausible basis for reversal of Appellant’s convictions. Anders v. California,

386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Schulman, 252

S.W.3d 403, 406 (Tex.Crim.App. 2008). Counsel candidly discusses why, under the

controlling authorities, the records support that conclusion. See High v. State, 573

S.W.2d 807, 813 (Tex.Crim.App. 1978). Counsel has demonstrated that he has

complied with the requirements of Anders and In re Schulman by (1) providing a copy of

the brief to Appellant, (2) notifying him of his right to file a pro se response if he desired

to do so, and (3) informing him of his right to file a pro se petition for discretionary

review. In re Schulman, 252 S.W.3d at 408. 3 By letter, this Court granted Appellant an

opportunity to exercise his right to file a response to counsel=s brief, should he be so

inclined. Id. at 409 n.23. Although untimely, Appellant did file a response on March 8,

2013, and a second response on May 2, 2013. The State did not favor us with a brief.

By the Anders brief, counsel raises one potential issue evaluating whether

Appellant’s sentence was within the legally prescribed range. Counsel then concludes 2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). 3 Notwithstanding that 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 & at 411 n.35. The duty to send the client a copy of the court of appeals’s decision 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.

2 after analyzing section 12.32 of the Texas Penal Code and sections 481.112(d) and

481.134(c)(1) of the Texas Health and Safety Code that Appellant’s sentence was well

within the prescribed range of punishment.

When we have an Anders brief by counsel and a pro se response by an

appellant, we have two choices. We may determine that the appeal is wholly frivolous

and issue an opinion explaining that we have reviewed the record and find no reversible

error; Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005) (citing Anders,

386 U.S. at 744), or we may determine that arguable grounds for appeal exist and

remand the cause to the trial court so that new counsel may be appointed to brief

issues. Id. (citing Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991)).

We have independently examined the entire records to determine whether there

are any non-frivolous issues which might support these appeals. See Penson v. Ohio,

488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); In re Schulman, 252 S.W.3d at

409; Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no

such issues. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After

reviewing the records, counsel=s brief, and Appellant=s pro se responses, we agree with

counsel that there is no plausible basis for reversal of either conviction. See Bledsoe,

178 S.W.3d at 824.

Accordingly, the trial court=s judgments are affirmed and counsel's motion to

withdraw is granted.

Patrick A. Pirtle Justice Do not publish.