NUMBER 13-13-00301-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ROBERT RAY MCMULLEN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court of Live Oak County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides Memorandum Opinion by Justice Rodriguez Appellant Robert Ray McMullen appeals from a conviction for failure to register as
a sex offender, a third-degree felony, for which the trial court assessed punishment at ten
years in the Institutional Division of the Texas Department of Criminal Justice. See TEX.
CODE CRIM. PROC. ANN. § 62.102(b)(2) (West, Westlaw through 2013 3d C.S.). Determining that the appeal in this cause is frivolous and without merit, 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, McMullen's counsel filed a brief stating that, after
a review of the record, he found no grounds for relief. See 386 U.S. 738, 744–45 (1967).
Counsel's brief meets the requirements of Anders as it presents a professional evaluation
showing why there are no meritorious grounds for advancing an appeal. See In re
Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“In 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 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) and Kelly v. State, No. PD-0702-13, 2014 WL 2865901, at *3 (Tex. Crim. App.
June 25, 2014), counsel has demonstrated that he has complied with the requirements
of Anders by discussing why, under controlling authority, any appeal from the judgment
would be without merit and frivolous. After examining the record, counsel specifically
concluded: (1) no harmful or jurisdictional error is apparent; (2) no procedural error is
apparent; (3) the indictment complies with the law; (4) there is legally sufficient evidence
to support the judgment; (5) there is no abuse of discretion by the trial court; (6) the
judgment has no errors; and (7) trial counsel provided effective assistance. 2 Counsel has also informed this Court, in writing, that he has: (1) notified
McMullen that counsel has filed an Anders brief and a request to withdraw as counsel;
(2) provided McMullen with copies of the pleadings; (3) informed McMullen of his right to
file a pro se response,1 to review the record preparatory to filing that response, and to
seek discretionary review if the court of appeals concludes that the appeal is frivolous;
and (4) provided a copy of the record to McMullen. See Anders, 386 U.S. at 744; Kelly,
2014 WL 28658901, at *3 & n.22; Stafford, 813 S.W.2d 503, 510 n.3; see also In re
Schulman, 252 S.W.3d at 409 n.23. Counsel requested that “this Court . . . grant
[McMullen] an extension of time for filing of a pro se [response] of sixty days from [March
28, 2014,] the date of the filing of this brief . . . .” We granted the motion and extended
the time for McMullen to file his pro se response to May 27, 2014. See Kelly, 2014 WL
2865901, at *3–4. An adequate time has passed, and McMullen has not filed a pro se
response.
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. Pension v. Ohio, 488
U.S. 75, 80 (1988). We have reviewed the entire record, and we have found nothing that
would arguably support an appeal.2 See Bledsoe v. State, 178 S.W.3d 824, 826–28
1 The Texas Court of Criminal Appeals has held that “the pro se response 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) (orig. proceeding) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
2 Although McMullen's attempt at a direct appeal has been unsuccessful, he is not without a
potential remedy. Challenges requiring development of a record to substantiate a claim, such as ineffective assistance of counsel, may be raised in an application for writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West, Westlaw through 2013 3d C.S.); Cooper v. State, 45 S.W.3d 77, 3 (Tex. Crim. App. 2005) (“Due 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 this Court carried with the case on June 25, 2014.
Within five days of the date of this Court's opinion, counsel is ordered to send a copy of
the opinion and judgment to McMullen and to advise McMullen of his right to pursue a
petition for discretionary review.3 See TEX. R. APP. P. 48.4; see also In re Schulman, 252
82 (Tex. Crim. App. 2001); Ex parte Torres, 943 S.W.2d 469, 476 (Tex. Crim. App. 1997). An application for writ of habeas corpus relief would "provide an opportunity to conduct a dedicated hearing to consider the facts, circumstances, and rationale behind counsel's actions at . . . trial." Thompson v. State, 9 S.W.3d 808, 814–15 (Tex. Crim.
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NUMBER 13-13-00301-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ROBERT RAY MCMULLEN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court of Live Oak County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides Memorandum Opinion by Justice Rodriguez Appellant Robert Ray McMullen appeals from a conviction for failure to register as
a sex offender, a third-degree felony, for which the trial court assessed punishment at ten
years in the Institutional Division of the Texas Department of Criminal Justice. See TEX.
CODE CRIM. PROC. ANN. § 62.102(b)(2) (West, Westlaw through 2013 3d C.S.). Determining that the appeal in this cause is frivolous and without merit, 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, McMullen's counsel filed a brief stating that, after
a review of the record, he found no grounds for relief. See 386 U.S. 738, 744–45 (1967).
Counsel's brief meets the requirements of Anders as it presents a professional evaluation
showing why there are no meritorious grounds for advancing an appeal. See In re
Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“In 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 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) and Kelly v. State, No. PD-0702-13, 2014 WL 2865901, at *3 (Tex. Crim. App.
June 25, 2014), counsel has demonstrated that he has complied with the requirements
of Anders by discussing why, under controlling authority, any appeal from the judgment
would be without merit and frivolous. After examining the record, counsel specifically
concluded: (1) no harmful or jurisdictional error is apparent; (2) no procedural error is
apparent; (3) the indictment complies with the law; (4) there is legally sufficient evidence
to support the judgment; (5) there is no abuse of discretion by the trial court; (6) the
judgment has no errors; and (7) trial counsel provided effective assistance. 2 Counsel has also informed this Court, in writing, that he has: (1) notified
McMullen that counsel has filed an Anders brief and a request to withdraw as counsel;
(2) provided McMullen with copies of the pleadings; (3) informed McMullen of his right to
file a pro se response,1 to review the record preparatory to filing that response, and to
seek discretionary review if the court of appeals concludes that the appeal is frivolous;
and (4) provided a copy of the record to McMullen. See Anders, 386 U.S. at 744; Kelly,
2014 WL 28658901, at *3 & n.22; Stafford, 813 S.W.2d 503, 510 n.3; see also In re
Schulman, 252 S.W.3d at 409 n.23. Counsel requested that “this Court . . . grant
[McMullen] an extension of time for filing of a pro se [response] of sixty days from [March
28, 2014,] the date of the filing of this brief . . . .” We granted the motion and extended
the time for McMullen to file his pro se response to May 27, 2014. See Kelly, 2014 WL
2865901, at *3–4. An adequate time has passed, and McMullen has not filed a pro se
response.
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. Pension v. Ohio, 488
U.S. 75, 80 (1988). We have reviewed the entire record, and we have found nothing that
would arguably support an appeal.2 See Bledsoe v. State, 178 S.W.3d 824, 826–28
1 The Texas Court of Criminal Appeals has held that “the pro se response 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) (orig. proceeding) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
2 Although McMullen's attempt at a direct appeal has been unsuccessful, he is not without a
potential remedy. Challenges requiring development of a record to substantiate a claim, such as ineffective assistance of counsel, may be raised in an application for writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West, Westlaw through 2013 3d C.S.); Cooper v. State, 45 S.W.3d 77, 3 (Tex. Crim. App. 2005) (“Due 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 this Court carried with the case on June 25, 2014.
Within five days of the date of this Court's opinion, counsel is ordered to send a copy of
the opinion and judgment to McMullen and to advise McMullen of his right to pursue a
petition for discretionary review.3 See TEX. R. APP. P. 48.4; see also In re Schulman, 252
82 (Tex. Crim. App. 2001); Ex parte Torres, 943 S.W.2d 469, 476 (Tex. Crim. App. 1997). An application for writ of habeas corpus relief would "provide an opportunity to conduct a dedicated hearing to consider the facts, circumstances, and rationale behind counsel's actions at . . . trial." Thompson v. State, 9 S.W.3d 808, 814–15 (Tex. Crim. App. 1999); see Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011) (“This Court has repeatedly stated that claims of ineffective assistance of counsel are generally not successful on direct appeal and are more appropriately urged in a hearing on an application for a writ of habeas corpus.”); see also Ex parte Miller, 330 S.W.3d 610, 623 (Tex. Crim. App. 2009) (“To show that appellate counsel was constitutionally ineffective for failing to assert a particular point of error on appeal, an applicant must prove that (1) ‘counsel's decision not to raise a particular point of error was objectively unreasonable,’ and (2) there is a reasonable probability that, but for counsel's failure to raise that particular issue, he would have prevailed on appeal.”) (internal citations omitted); Ex parte Santana, 227 S.W.3d 700, 704–05 (Tex. Crim. App. 2007).
3No substitute counsel will be appointed. Should appellant wish to seek review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary 4 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
NELDA V. RODRIGUEZ Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 31st day of July, 2014.
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 the clerk of the Texas Court of Criminal Appeals. See id. at R. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. at R. 68.4. 5