Sam Wiley, Jr. v. State

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-14-00018-CR

SAM WILEY, JR., Appellant v.

THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2012-381-C2

MEMORANDUM OPINION

A jury found Sam Wiley guilty of sexual assault and sentenced him to twenty

years’ confinement and a $5,000 fine. Wiley appealed.

Wiley’s appointed appellate counsel has filed a motion to withdraw and an

Anders brief, asserting that he has diligently reviewed the appellate record and that, in

his opinion, the appeal is frivolous.1 See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,

1 Wiley’s appointed attorney complied with all the requirements in Anders cases, as announced prior to Kelly v. State, No. PD-0702-13, ___ S.W.3d. ___, 2014 WL 2865901 (Tex. Crim. App. Jun. 25, 2014). He did 18 L.Ed.2d 493 (1967). Wiley has filed a pro se response; however, he does not raise any

arguable issues.2

In an Anders case, we must, “after a full examination of all the proceedings, …

decide whether the case is wholly frivolous.” Id. at 744, 87 S.Ct. at 1400; accord Stafford v.

State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is “wholly frivolous” or

“without merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486

U.S. 429, 439 n.10, 108 S.Ct. 1895, 1902 n.10, 100 L.Ed.2d 440 (1988). We have conducted

an independent review of the record, and because we find this appeal to be wholly

frivolous, we affirm the judgment.

We grant appointed counsel’s motion to withdraw from representation of Wiley.

Notwithstanding this grant, appointed counsel must send Wiley a copy of our decision,

notify him of his right to file a pro se petition for discretionary review, and send this

Court a letter certifying counsel’s compliance with Texas Rule of Appellate Procedure

48.4. TEX. R. APP. P. 48.4; see also Ex parte Owens, 206 S.W.3d 670, 673-74 (Tex. Crim.

App. 2006).

not have the benefit of Kelly at the time the motion to withdraw and the Anders brief were filed. He did, however, notify Wiley of his right to obtain and review the record and to file a response to the motion to withdraw and Anders brief. Wiley filed a lengthy response that cites to the record. Based on the notice provided by counsel and the response filed by Wiley, we find it unnecessary to require appointed counsel or this Court to take any additional steps or procedures, as discussed in Kelly. We note that Wiley makes no complaint, request, or suggestion that causes this Court to question whether the record was made available to him for his review, if he desired to have it.

2 Wiley’s pro se response does not contain proper proof of service; however, to expedite this matter, we implement Appellate Rule 2 to suspend Rule 9.5’s proof-of-service requirement for this document only. Additionally, Wiley’s motion requesting suspension of the rules of appellate procedure to allow him to file only the original of his pro se response is granted.

Wiley v. State Page 2 REX D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed August 28, 2014 Do not publish [CR25]

Wiley v. State Page 3