Tommy Lynn Cox v. State

Opinion

NUMBER 13-09-00257-CR NUMBER 13-09-00258-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

TOMMY LYNN COX, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 156th District Court of Bee County, Texas.

MEMORANDUM OPINION Before Justices Rodriguez, Benavides, and Vela Memorandum Opinion by Justice Benavides

In two separate trial court cause numbers below, Appellant, Tommy Lynn Cox was

charged with and pleaded “no contest” to indecency with a child. See TEX . PENAL CODE ANN . § 21.11 (Vernon Supp. 2009). In the first case, which we have assigned as appellate

cause number 13-09-00257-CR, Cox was convicted on his plea and was sentenced to ten

years’ imprisonment in the Texas Department of Criminal Justice—Institutional Division

(“TDCJ-ID”). The trial court suspended the sentence and placed Cox on ten years’

community supervision. See TEX . CODE OF CRIM . PROC . ANN . art. 42.12 § 3 (Vernon Supp.

2009). In the second case, which we have assigned as appellate cause number 13-09-

00258-CR, the trial court deferred adjudication and placed Cox on ten years’ community

supervision. See id. art. 42.12 § 5.

The State filed motions to revoke Cox’s community supervision in each of the cases.

Cox stipulated to all the facts and allegations regarding the violation of his community

supervision and pleaded “true” to the allegations in the motions to revoke. The trial court

revoked Cox’s community supervision in the first case and sentenced him to seven years’

imprisonment in the TDCJ-ID. See id. art. 42.12 § 23(a). The trial court adjudicated Cox

guilty in the second case and likewise sentenced him to seven years’ imprisonment in the

TDCJ-ID. Id. art. 42.12 § 5(b). The sentences were to run concurrently.

Cox’s appellate counsel, concluding that "there are no arguable grounds to be

advanced on appeal," filed an Ander’s brief in which he reviewed the merits, or lack

thereof, of the appeals. We affirm.

I. DISCUSSION

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

court-appointed appellate counsel has filed a brief with this Court, stating that his review

2 of the records yielded no grounds or error upon which any appeal can be predicated.

Although counsel’s brief does not advance any arguable grounds of error, it does present

a professional evaluation of the records demonstrating why there are no arguable grounds

to be advanced 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 has carefully discussed why, under controlling authority, there

are no errors in the trial court's judgments. Counsel has informed this Court that he has:

(1) examined the records and found no arguable grounds to advance on appeal; (2) served

a copy of the brief and counsel’s motion to withdraw on appellant; and (3) informed

appellant of his right to review the records and to file a pro se response within thirty days.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. A sufficient time has passed, and Cox has not filed a pro se

response.

1 The Texas Court of Crim inal Appeals has held that “the pro se response need not com ply 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 m eritorious issues.” In re Schulman, 252 S.W .3d 403, 409 n.23 (Tex. Crim . App. 2008) (quoting W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App.–W aco 1997, no pet.)). 3 II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the cases are wholly frivolous. Penson v. Ohio, 488

U.S. 75, 80 (1988). We have reviewed the entire records, counsel's brief and have found

nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824,

826-28 (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. Accordingly, we affirm the

judgments of the trial court.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s attorney has 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.) (noting that “[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 the opinion and judgment to appellant and to advise appellant of his right

to file a petition for discretionary review in each of his cases.2 See TEX . R. APP. P. 48.4;

2 No substitute counsel will be appointed. Should appellant wish to seek further review of his cases by the Texas Court of Crim inal Appeals, he m ust either retain an attorney to file a petition for discretionary review or file a pro se petitions for discretionary review. Any petition for discretionary review m ust be filed

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).

__________________________ GINA M. BENAVIDES, Justice

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

Delivered and filed the 8th day of July, 2010.

within thirty days from the date of either this opinion or the last tim ely m otion for rehearing that was overruled by this Court. See T EX . R. A PP . P. 68.2. Any petition for discretionary review m ust be filed with this Court, after which it will be forwarded to the Texas Court of Crim inal Appeals. See T EX . R. A PP . P. 68.3; 68.7. Any petition for discretionary review should com ply with the requirem ents of Rule 68.4 of the Texas Rules of Appellate Procedure. See T EX . R. A PP . P. 68.4.