Telly J. Smith v. State

• Court: Court of Appeals of Texas
• Decided: April 14, 2016
• Docket: 01-14-01034-CR
• Status: Published

Opinion

Opinion issued April 14, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-01034-CR ——————————— TELLY J. SMITH, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from 230th District Court Harris County, Texas Trial Court Cause No. 1413462

MEMORANDUM OPINION Appellant, Telly J. Smith, pleaded guilty to the first-degree felony offense of

aggregate theft—over $200,000—without an agreed recommendation as to

punishment, pending a pre-sentence investigation report. See TEX. PENAL CODE

ANN. §§ 31.03(a), (e)(7), 31.09 (West Supp. 2015). Following a pre-sentence investigation and hearing, the trial court assessed appellant’s punishment at fifty-five

years’ confinement on December 22, 2014. This sentence is within the applicable

sentencing range. See id. § 12.32(a) (West Supp. 2015). The trial court certified

that this was not a plea-bargain case, and that appellant had the right of appeal. See

TEX. R. APP. P. 25.2(a)(2). Appellant timely filed a notice of appeal.

Appellant’s appointed counsel on appeal has filed a motion to withdraw, along

with an Anders brief stating that the record presents no reversible error and that,

therefore, the appeal is without merit and is frivolous. See Anders v. California, 386

U.S. 738, 87 S. Ct. 1396 (1967). Counsel’s brief meets the Anders requirements by

presenting a professional evaluation of the record and supplying this Court with

references to the record and legal authority. See id. at 744, 87 S. Ct. at 1400; see

also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates

that he has thoroughly reviewed the record and that he is unable to advance any

grounds of error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at

1400; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006,

no pet.).

Appellant’s counsel has informed us that he has delivered a copy of the motion

to withdraw and Anders brief to appellant and informed him of his right to file a

response and to access the record. See In re Schulman, 252 S.W.3d 403, 408 (Tex.

Crim. App. 2008). Furthermore, a copy of the record has been sent to appellant for

2 review. See Kelly v. State, 436 S.W.3d 313, 322 (Tex. Crim. App. 2014). Appellant

timely filed a pro se Anders response, styled as a “Motion to Object to Counsel’s

[Motion to] Withdraw as Attorney of Record.”

We have independently reviewed the entire record in this appeal, and we

conclude that no reversible error exists in the record, that there are no arguable

grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S.

at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—

determines, after full examination of proceedings, whether appeal is wholly

frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing

court must determine whether arguable grounds for review exist); Bledsoe v. State,

178 S.W.3d 824, 826–28 (Tex. Crim. App. 2005) (reviewing court is not to address

merits of each claim raised in Anders brief or pro se response after determining there

are no arguable grounds for review); Mitchell, 193 S.W.3d at 155. An appellant may

challenge a holding that there are no arguable grounds for appeal by filing a petition

for discretionary review in the Texas Court of Criminal Appeals. See Bledsoe, 178

S.W.3d at 827 n.6.

3 CONCLUSION Accordingly, we affirm the judgment of the trial court and grant counsel’s

motion to withdraw. See TEX. R. APP. P. 43.2(a).1 Attorney Brian M. Middleton

must immediately send the required notice and file a copy of that notice with the

Clerk of this Court. See TEX. R. APP. P. 6.5(c). We dismiss any other pending

motions as moot.

PER CURIAM Panel consists of Chief Justice Radack and Justices Keyes and Higley. Do not publish. TEX. R. APP. P. 47.2(b).

1 Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 826–27. 4