Tanya Elaine Bang v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 30, 2023
• Docket: 13-23-00235-CR
• Status: Published

Opinion

NUMBER 13-23-00235-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

TANYA ELAINE BANG, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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

MEMORANDUM OPINION Before Justices Benavides, Longoria, and Tijerina Memorandum Opinion by Justice Benavides

Appellant Tanya Elaine Bang appeals from a judgment revoking her community

supervision and sentencing her to two years in state jail for her underlying conviction of

forgery of a financial instrument, a state jail felony. See TEX. PENAL CODE ANN. § 32.21(d).

Bang’s court-appointed appellate counsel has filed an Anders brief stating that there are

no arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm the trial court’s judgment as modified.

I. ANDERS BRIEF

Pursuant to Anders v. California, Bang’s court-appointed appellate counsel filed a

brief and a motion to withdraw with this Court, stating that her review of the record yielded

no grounds of reversible 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) (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–Edinburg 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) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014), Bang’s

counsel carefully discussed why, under controlling authority, there is no reversible error

in the trial court’s judgment. Bang’s counsel also informed this Court in writing that she:

(1) notified Bang that counsel has filed an Anders brief and a motion to withdraw;

(2) provided Bang with copies of both pleadings; (3) informed Bang of her rights to file pro

se responses, review the record prior to filing those responses, and seek discretionary

review if we conclude that the appeal is frivolous; and (4) provided Bang with a copy of

the record. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20; Stafford, 813

2 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23.

Bang filed a pro se response. When appellate counsel files an Anders brief and

the appellant independently files a pro se response, the court of appeals has two choices:

[i]t may determine that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error. Or, it may determine that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues.

Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (internal citations

omitted). We are “not required to review the merits of each claim raised in an Anders brief

or a pro se response.” Id. at 827. Rather, we must merely determine if there are any

arguable grounds for appeal. Id. If we determine there are such arguable grounds, we

must remand for appointment of new counsel. Id. Reviewing the merits raised in a pro se

response would deprive an appellant of the meaningful assistance of counsel. Id.

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). We have reviewed the record, counsel’s brief, and Bang’s response, and

we 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.

3 III. MODIFICATION OF JUDGMENT

We do note, however, that the trial court’s judgment contains a clerical error.

During sentencing, the trial court stated, “I will have this sentence run concurrent with the

sentence[s] out of San Patricio County . . . .” However, the trial court’s judgment recites,

“THIS SENTENCE SHALL RUN CONCURRENT WITH: N/A.” To the extent this judgment

may be interpreted as improperly cumulating Bang’s sentence in this case with “the

sentence[s] out of San Patricio County,” we have the power to remedy this error by

reforming the judgment. See Ex parte Carter, 521 S.W.3d 344, 347 (Tex. Crim. App.

2017). Thus, we reform the judgment to reflect that Bang’s sentence in this matter shall

run concurrently with the sentences that were imposed in San Patricio County on April

25, 2023.1 See id.

IV. MOTION TO WITHDRAW

In accordance with Anders, Bang’s counsel asked this Court for permission to

withdraw as counsel. 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.) (“[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 Bang and to advise her of her right to file a petition for

1 This refers specifically to trial court cause numbers S-23-3024CR and S-23-3168CR.

4 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).

V. CONCLUSION

We affirm the trial court’s judgment as modified.

GINA M. BENAVIDES Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed on the 30th day of November, 2023.

2 No substitute counsel will be appointed. Should Bang wish to seek further review of this case by

the Texas Court of Criminal Appeals, she 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 that was overruled by this Court. See TEX. R. APP. P. 68.2. A petition for discretionary review must be filed with the Clerk of the Texas Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4. 5