Timothy Wade Lewis v. State

• Court: Court of Appeals of Texas
• Decided: August 16, 2012
• Docket: 13-11-00425-CR
• Status: Published

Opinion

NUMBER 13-11-00425-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

TIMOTHY WADE LEWIS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the Criminal District Court of Jefferson County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Vela Memorandum Opinion by Chief Justice Valdez Appellant, Timothy Wade Lewis, appeals his conviction for burglary of a

habitation, a second-degree felony. See TEX. PENAL CODE ANN. § 30.02(a)(1), (c)(2)

(West 2011). Pursuant to a plea-bargain agreement, appellant pleaded guilty to the

offense of burglary of a habitation, and was placed on community supervision.

Subsequently, the State filed a motion to revoke appellant’s community supervision,

alleging four violations. Appellant pleaded “true” to two of the violations, which the trial court found to be true. Thereafter, the trial court revoked appellant’s community

supervision, adjudicated appellant guility, and sentenced appellant to a term of ten

years of confinement in the Texas Department of Criminal Justice, Institutional Division.

See id. § 12.33(a) (West 2011).

Appellant timely perfected this appeal and, as discussed below, his court-

appointed counsel filed an Anders brief. We affirm.

I. ANDERS BRIEF

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant’s court-

appointed appellate counsel 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. 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), appellant’s counsel carefully discussed why, under controlling authority,

there is no reversible error in the trial court’s judgment. Counsel has informed this

Court that he has: (1) examined the record and found no arguable grounds to advance

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

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

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

re Schulman, 252 S.W.3d at 409 n.23. Appellant has responded by filing a timely pro

se response.

II. INDEPENDENT REVIEW

A court of appeals has two options when an Anders brief and a subsequent pro

se response are filed. After reviewing the entire record, it may: (1) determine that the

appeal is wholly frivolous and issue an opinion explaining that it finds no reversible

error; or (2) determine that there are arguable grounds for appeal and remand the case

to the trial court for appointment of new appellate counsel. Bledsoe v. State, 178

S.W.3d 824, 826-27 (Tex. Crim. App. 2005). If the court finds arguable grounds for

appeal, it may not review those grounds until after new counsel has briefed those issues

on appeal. Id.

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 entire record, counsel’s brief, appellant’s pro

se response and we have found nothing that would arguably support an appeal. See

Bledsoe, 178 S.W.3d at 827-28 (“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

1 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) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)).

3 of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. There is no reversible

error in the record. Accordingly, the judgment of the trial court is affirmed.

III. MOTION TO WITHDRAW

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

to withdraw as counsel for appellant. 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 appellant and to

advise him of his right to file a petition for 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).

__________________ ROGELIO VALDEZ Chief Justice

Do not Publish. TEX. R. APP. P. 47.2(b) Delivered and filed the 16th day of August, 2012.

2 No substitute counsel will be appointed. Should appellant wish to seek 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 that was overruled by this Court. See TEX. R. APP. P. 68.2. Effective September 1, 2011, any 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 Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4.