Samuel Earl Evans v. State

• Court: Court of Appeals of Texas
• Decided: February 27, 2019
• Docket: 10-18-00245-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-18-00245-CR No. 10-18-00246-CR

SAMUEL EARL EVANS, Appellant v.

THE STATE OF TEXAS, Appellee

From the 13th District Court Navarro County, Texas Trial Court Nos. D37863 and D37861

MEMORANDUM OPINION

A jury found Appellant Samuel Earl Evans guilty of tampering with physical

evidence and taking a controlled substance into a correctional facility; the trial court

assessed Evans’s punishment, enhanced by prior felony convictions, at twenty-six years’

imprisonment for each offense, to run concurrently. See TEX. PENAL CODE ANN. § 12.42(d)

(West Supp. 2018), § 37.09 (West 2016), § 38.11 (West Supp. 2018). These appeals ensued.

We affirm the trial court’s judgments. Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d

493 (1967), Evans’s court-appointed appellate counsel filed a brief and motion to

withdraw with this Court, stating that her review of the record in each appeal yielded no

grounds of error upon which an appeal can be predicated. 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), Evans’s counsel has carefully discussed why, under controlling authority, there is

no reversible error in the trial court’s judgments. Counsel has informed this Court that

she has: (1) examined the record in each appeal and found no arguable grounds to

advance on appeal; (2) served a copy of the brief and counsel’s motion to withdraw on

Evans; and (3) informed Evans of his right to review the record and to file a pro se

response.1 See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; Stafford, 813 S.W.2d at 510 n.3; see

1Counsel has informed this Court that she has provided the appellate records to Evans. See Kelly v. State, 436 S.W.3d 313, 321-22 (Tex. Crim. App. 2014). Evans v. State Page 2 also Schulman, 252 S.W.3d at 409 n.23. More than an adequate period of time has passed,

and Evans has not filed a pro se response. See Schulman, 252 S.W.3d at 409.

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, 109 S.Ct. 346, 349-50, 102 L.Ed.2d 300 (1988). We have reviewed the entire record

in each appeal and counsel’s brief and have found nothing that would arguably support

an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (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. The judgments of the trial court are therefore affirmed.

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

to withdraw as counsel for Evans. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; see also

Schulman, 252 S.W.3d at 408 n.17 (quoting 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.”)). 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 judgments to Evans and to advise him of his right to file a

Evans v. State Page 3 petition for discretionary review.2 See TEX. R. APP. P. 48.4; see also Schulman, 252 S.W.3d

at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

REX D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Senior Justice Scoggins3 Affirmed Opinion delivered and filed February 27, 2019 Do not publish [CRPM]

2No substitute counsel will be appointed. Should Evans wish to seek further review of these cases by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of this opinion or from the date the last timely motion for rehearing was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition and all copies of the petition for discretionary review must be filed with the Clerk of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4; see also Schulman, 252 S.W.3d at 409 n.22.

3The Honorable Al Scoggins, Senior Justice of the Tenth Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003 (West 2013). Evans v. State Page 4