Robert Wayne Thompson v. State

• Court: Court of Appeals of Texas
• Decided: July 2, 2009
• Docket: 13-08-00579-CR
• Status: Published

Opinion

NUMBER 13-08-00579-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ROBERT WAYNE THOMPSON, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court of San Patricio County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Benavides Memorandum Opinion by Chief Justice Valdez

On October 17, 2003, appellant, Robert Wayne Thompson, was indicted for the

offense of driving while intoxicated. See TEX . PENAL CODE ANN . § 49.04 (Vernon 2003), §

49.09 (Vernon Supp. 2008). The indictment alleged two prior convictions for driving while

intoxicated, enhancing the current offense to a second-degree felony. Id. § 12.42 (Vernon Supp. 2008). Thompson entered into a plea agreement with the State in which he pleaded

guilty to the indicted offense and answered true to the enhancement allegations in

exchange for a recommendation by the State that he receive a ten-year probated

sentence, community supervision, and a fine of $2,500. See TEX . CODE CRIM . PROC . ANN .

art. 42.12 (Vernon Supp. 2008). On February 16, 2004, the trial court accepted the plea

agreement, sentenced Thompson to ten years’ confinement, probated the sentence for ten

years, placed Thompson on community supervision, and fined him $2,500.

On May 17, 2005, the State moved to revoke Thompson’s community supervision

on the grounds that he violated community supervision terms by, inter alia, not attending

mandatory meetings. Thompson answered “true” to the allegations in the motion to

revoke. The trial court granted the State’s motion and revoked Thompson’s community

supervision. Thompson’s court-appointed appellate counsel has filed an Anders brief. We

affirm.

I. ANDERS BRIEF

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

court-appointed appellate counsel has filed a brief with this Court, stating that his review

of the record yielded no grounds or error upon which an appeal can be predicated.

Although counsel’s brief does not advance any arguable grounds of error, it does present

a professional evaluation of the record demonstrating why there are no arguable grounds

to be advanced on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim.

App. 2008) (“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 2 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).

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

1978), Thompson’s counsel has carefully discussed why, under controlling authority, there

are no errors in the trial court’s judgment. Counsel has informed this Court that he has:

(1) examined the record and found no arguable grounds to advance on appeal, (2) served

a copy of the brief and counsel’s motion to withdraw on Thompson, and (3) informed

Thompson of his right to review the record and to file a pro se response within thirty days.1

See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman,

252 S.W.3d at 409 n.23. More than an adequate period of time has passed, and

Thompson has filed a pro se response. See In re Schulman, 252 S.W.3d at 409.

I. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the

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 824,

826-28 (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.

1 The Texas Court of Crim inal Appeals has held that “the pro se response need not com ply 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 m eritorious issues.” In re Schulman, 252 S.W .3d 403, 409 n.23 (Tex. Crim . App. 2008) (quoting W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App.–W aco 1997, no pet.)). 3 II. MOTION TO WITHDRAW

In accordance with Anders, Thompson’s attorney has asked this Court for

permission to withdraw as counsel for appellant. 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.) (noting that “[i]f 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. Within five days of the date of this Court’s opinion,

counsel is ordered to send a copy of the opinion and judgment to Thompson and to advise

him of his right to file a petition for discretionary review.2 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). ________________________ ROGELIO VALDEZ Chief Justice Do Not Publish. TEX . R. APP. P. 47.2(b) Memorandum Opinion delivered and filed this the 2nd_day of July, 2009.

2 No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Crim inal Appeals, he m ust 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 m ust be filed within thirty days from the date of either this opinion or the last tim ely m otion for rehearing that was overruled by this Court. See T EX . R. A PP . P. 68.2. Any petition for discretionary review m ust be filed with this Court, after which it will be forwarded to the Texas Court of Crim inal Appeals. See T EX . R. A PP . P. 68.3; 68.7. Any petition for discretionary review should com ply with the requirem ents of Rule 68.4 of the Texas Rules of Appellate Procedure. See T EX . R. A PP . P. 68.4.