Waymond Anderson A/K/A Waymon Anderson A/K/A Waymon Dwann Anderson v. State

• Court: Court of Appeals of Texas
• Decided: April 21, 2016
• Docket: 13-15-00258-CR
• Status: Published

Opinion

NUMBER 13-15-00258-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

WAYMOND ANDERSON A/K/A WAYMON ANDERSON A/K/A WAYMON DWANN ANDERSON, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 214th District Court of Nueces County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Chief Justice Valdez

Appellant, Waymond Anderson a/k/a Waymon Anderson a/k/a Waymon Dwann

Anderson, pleaded guilty to theft, a state jail felony, in 2009. See TEX. PENAL CODE ANN.

§ 31.03 (West, Westlaw through 2015 R.S.). The trial court deferred adjudication and

placed Anderson on community supervision. In 2015, the State filed a motion to revoke

Anderson’s community supervision based on several allegations that Anderson had violated various conditions. Anderson pleaded “true” to the State’s allegations that he

violated the conditions by testing positive for marihuana. A hearing was held, and the

trial court found that all of the State’s allegations were true.1 This appeal followed.

Anderson’s court-appointed counsel has filed an Anders brief. See Anders v. California,

386 U.S. 738, 744 (1967). We affirm.

I. ANDERS BRIEF

Pursuant to Anders v. California, Anderson’s court-appointed appellate counsel

has 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) (“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) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014),

Anderson’s counsel carefully discussed why, under controlling authority, there is no

reversible error in the trial court’s judgment. Anderson’s counsel has also informed this

Court that Anderson has been (1) notified that counsel has filed an Anders brief and a

1 The State alleged that Anderson had: (1) tested positive for marihuana on two occasions; (2) admitted to his community supervision officer (“CSO”) that he had used marihuana on two other occasions; (3) failed to report to his CSO for the months of May, July, October, November, and December of 2014 and for January of 2015; (4) failed to attend, participate, pay for, and complete in a satisfactory manner the Felony Impact Panel, the Theft Rehabilitation Program, and the Money Management Program; and (5) failed to pay restitution in the amount of $2433.

2 motion to withdraw; (2) provided with copies of both pleadings; (3) informed of his rights

to file a pro se response, review the record preparatory to filing that response, and seek

discretionary review if we concluded that the appeal is frivolous; and (4) provided with a

form motion for pro se access to the appellate record with instructions to file the motion

within ten days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20, Stafford,

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

adequate period of time has passed, and Anderson has not filed a motion seeking pro se

access to the appellate record, a motion for extension of time to do so, or a pro se

response.2

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 entire record and counsel’s brief, and we have

found nothing that would arguably support an appeal. See id. 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 of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d

at 509. Accordingly, we affirm the judgment of the trial court.

III. MOTION TO WITHDRAW

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

permission to withdraw as counsel. See Anders, 386 U.S. at 744; see also In re

2 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 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 that was carried with the case on November 19, 2015. 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 Anderson and to advise him of his right to file a petition for

discretionary review.3 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).

/s/ Rogelio Valdez ROGELIO VALDEZ Chief Justice

Do Not Publish. TEX. R. APP. P. 47.2(b).

Delivered and filed this the 21st day of April, 2016.

3 No substitute counsel will be appointed. Should Anderson 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. A petition for discretionary review must be filed with the clerk of the 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.