NUMBER 13-17-00037-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ROSS ALLEN HARTWELL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 390th District Court of Travis County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion by Justice Longoria
This is an appeal from a new punishment hearing ordered by this Court in the
appellant’s prior appeal of this case. See Hartwell v. State, 476 S.W.3d 523 (Tex. App.—
Corpus Christi 2015, pet. ref’d). In the underlying trial, a jury found Hartwell guilty of
aggravated robbery with an affirmative deadly weapon finding. See TEX. PENAL CODE
ANN. § 29.03 (West, Westlaw through 1st 2017 C.S.). The jury found two enhancement paragraphs to be true and assessed a punishment of seventy years' imprisonment.
Hartwell raised ten issues on appeal and this Court affirmed the guilt-innocence phase
issues, but reversed for a new punishment hearing. Hartwell, 476 S.W.3d at 541.
Following the new punishment hearing, the trial court imposed a sixty-year sentence. 1
Hartwell’s court-appointed counsel has filed an Anders brief. See Anders v. California,
386 U.S. 738, 744 (1967). Hartwell filed a pro se response in which he raises two issues
on appeal. We affirm.
I. ANDERS BRIEF
Pursuant to Anders, Hartwell’s court-appointed appellate counsel has filed a brief
and a motion to withdraw with this Court, stating that his review of the record yielded no
grounds of error upon which an appeal can be predicated. See id. Counsel’s brief meets
the requirements of Anders as it presents a professional evaluation demonstrating why
there are no arguable grounds to advance 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 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), Hartwell’s counsel carefully discussed why, under controlling authority, there
is no reversible error in the trial court's judgment. Counsel has informed this Court, in
1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this case was transferred to this Court from the Third Court of Appeals in Austin. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through 2017 1st C.S.).
2 writing, that counsel has: (1) notified the appellant that counsel has filed an Anders brief
and a motion to withdraw; (2) provided appellant with a copy of the Anders brief; (3)
informed the appellant of his rights to file a pro se response 2 and review the record
preparatory to filing that response; and (4) provided the appellant with a form motion for
pro se access to the appellate record with instructions to file the motion in this Court. See
Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319; Stafford, 813 S.W.2d at 510 n.3; see
also In re Schulman, 252 S.W.3d at 409 n.23. Hartwell has filed a pro se brief and a reply
to the State’s brief.
Hartwell’s pro se brief and reply brief assert two issues for our review: (1) he did
not receive a fair trial by a fair and impartial jury, and (2) the trial court erred in allowing a
collaterally estopped issue to be relitigated over a defense objection.
II. 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). If a later pro se brief is filed after an Anders brief has been submitted on
behalf of the appellant, the Court of Criminal Appeals has in Bledsoe stated an appellate
court has two choices. Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005).
We may determine the appeal is wholly frivolous and issue an opinion after reviewing the
record and finding no reversible error. Id. at 826–827. Alternatively, if we determine that
arguable grounds for appeal exist, we must remand for the appointment of new counsel
to brief those issues. Id. at 827.
2 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).
3 We have conducted an independent review of the record, including appellate
counsel's brief, Hartwell’s written responses, and the State’s brief, and find no reversible
error. See Anders, 386 U.S. at 744; Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim.
App. 2009); Bledsoe, 178 S.W.3d at, 826–27. We agree with counsel that the record
presents no arguably meritorious grounds for review and the appeal is frivolous. The
points of error raised in Hartwell’s pro se briefs have no arguable merit. See Garner, 300
S.W.3d at 766; Bledsoe, 178 S.W.3d at 827.
III. MOTION TO WITHDRAW
ln accordance with Anders, Hartwell’s attorney has asked this Court for permission
to withdraw as counsel. See Anders, 386 U.S. at 744; see also ln 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.) ("[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 this
opinion and this Court's judgment to Hartwell and to advise him of his right to file a petition
for discretionary review. 3 See TEX. R. APP. P. 48.4; see also ln re Schulman, 252 S.W.3d
at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
IV. CORRECTION OF JUDGMENT
3 No substitute counsel will be appointed. If Hartwell seeks further review of this case by the Texas
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NUMBER 13-17-00037-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ROSS ALLEN HARTWELL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 390th District Court of Travis County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion by Justice Longoria
This is an appeal from a new punishment hearing ordered by this Court in the
appellant’s prior appeal of this case. See Hartwell v. State, 476 S.W.3d 523 (Tex. App.—
Corpus Christi 2015, pet. ref’d). In the underlying trial, a jury found Hartwell guilty of
aggravated robbery with an affirmative deadly weapon finding. See TEX. PENAL CODE
ANN. § 29.03 (West, Westlaw through 1st 2017 C.S.). The jury found two enhancement paragraphs to be true and assessed a punishment of seventy years' imprisonment.
Hartwell raised ten issues on appeal and this Court affirmed the guilt-innocence phase
issues, but reversed for a new punishment hearing. Hartwell, 476 S.W.3d at 541.
Following the new punishment hearing, the trial court imposed a sixty-year sentence. 1
Hartwell’s court-appointed counsel has filed an Anders brief. See Anders v. California,
386 U.S. 738, 744 (1967). Hartwell filed a pro se response in which he raises two issues
on appeal. We affirm.
I. ANDERS BRIEF
Pursuant to Anders, Hartwell’s court-appointed appellate counsel has filed a brief
and a motion to withdraw with this Court, stating that his review of the record yielded no
grounds of error upon which an appeal can be predicated. See id. Counsel’s brief meets
the requirements of Anders as it presents a professional evaluation demonstrating why
there are no arguable grounds to advance 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 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), Hartwell’s counsel carefully discussed why, under controlling authority, there
is no reversible error in the trial court's judgment. Counsel has informed this Court, in
1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this case was transferred to this Court from the Third Court of Appeals in Austin. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through 2017 1st C.S.).
2 writing, that counsel has: (1) notified the appellant that counsel has filed an Anders brief
and a motion to withdraw; (2) provided appellant with a copy of the Anders brief; (3)
informed the appellant of his rights to file a pro se response 2 and review the record
preparatory to filing that response; and (4) provided the appellant with a form motion for
pro se access to the appellate record with instructions to file the motion in this Court. See
Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319; Stafford, 813 S.W.2d at 510 n.3; see
also In re Schulman, 252 S.W.3d at 409 n.23. Hartwell has filed a pro se brief and a reply
to the State’s brief.
Hartwell’s pro se brief and reply brief assert two issues for our review: (1) he did
not receive a fair trial by a fair and impartial jury, and (2) the trial court erred in allowing a
collaterally estopped issue to be relitigated over a defense objection.
II. 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). If a later pro se brief is filed after an Anders brief has been submitted on
behalf of the appellant, the Court of Criminal Appeals has in Bledsoe stated an appellate
court has two choices. Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005).
We may determine the appeal is wholly frivolous and issue an opinion after reviewing the
record and finding no reversible error. Id. at 826–827. Alternatively, if we determine that
arguable grounds for appeal exist, we must remand for the appointment of new counsel
to brief those issues. Id. at 827.
2 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).
3 We have conducted an independent review of the record, including appellate
counsel's brief, Hartwell’s written responses, and the State’s brief, and find no reversible
error. See Anders, 386 U.S. at 744; Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim.
App. 2009); Bledsoe, 178 S.W.3d at, 826–27. We agree with counsel that the record
presents no arguably meritorious grounds for review and the appeal is frivolous. The
points of error raised in Hartwell’s pro se briefs have no arguable merit. See Garner, 300
S.W.3d at 766; Bledsoe, 178 S.W.3d at 827.
III. MOTION TO WITHDRAW
ln accordance with Anders, Hartwell’s attorney has asked this Court for permission
to withdraw as counsel. See Anders, 386 U.S. at 744; see also ln 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.) ("[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 this
opinion and this Court's judgment to Hartwell and to advise him of his right to file a petition
for discretionary review. 3 See TEX. R. APP. P. 48.4; see also ln re Schulman, 252 S.W.3d
at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
IV. CORRECTION OF JUDGMENT
3 No substitute counsel will be appointed. If Hartwell seeks 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 or timely motion for en banc reconsideration was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4.
4 Hartwell’s counsel and the State agree that there is a clerical error in the judgment.
The judgment incorrectly states that Hartwell pleaded “true” at the punishment hearing to
the second enhancement paragraph, which he did not. Hartwell pleaded “not true” to the
enhancement paragraph and the judgment should be modified to reflect his plea. This
Court has authority to modify incorrect judgments when the necessary information is
available to do so. See TEX. R. APP. P. 43.2 (b) (authorizing court of appeals to modify
trial court's judgment and affirm it as modified); Bigley v. State, 865 S.W.2d 26, 27-28
(Tex. Crim. App. 1993) (concluding that Texas Rules of Appellate Procedure empower
courts of appeals to reform judgments). Accordingly, we modify the judgment to reflect
that the Hartwell pleaded “not true” to the second enhancement paragraph.
V. CONCLUSION
Counsel's motion to withdraw is granted. We affirm the trial court’s judgment as
modified. Any pending motions are denied as moot.
NORA L. LONGORIA Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 31st day of May, 2018.