Xavier Wynn v. State

Opinion

Opinion issued December 3, 2020

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-01121-CR ——————————— XAVIER WYNN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court Harris County, Texas Trial Court Case No. 1479442

MEMORANDUM OPINION

Appellant, Xavier Wynn, pleaded guilty without an agreed punishment

recommendation to the first-degree felony offense of aggravated robbery. See TEX.

PENAL CODE § 29.03. The trial court found sufficient evidence to find appellant

guilty but deferred making any finding regarding appellant’s guilt and placed appellant on community supervision for a period of ten years. The State

subsequently filed a motion to adjudicate appellant’s guilt, alleging violations of the

terms of appellant’s community supervision. Appellant pleaded “not true” to the

violations. The trial court found certain allegations true, adjudicated appellant guilty,

and sentenced appellant to fifty years’ imprisonment. The sentence is within the

applicable punishment range. See TEX. PENAL CODE § 12.32. 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 (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; see also High v. State, 573 S.W.2d 807,

812 (Tex. Crim. App. 1978). Counsel indicates that she has thoroughly reviewed the

record and that she is unable to advance any grounds of error that warrant reversal.

See Anders, 386 U.S. at 744; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—

Houston [1st Dist.] 2006, no pet.).

Appellant’s counsel certified that he delivered a copy of the motion to

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

pro se response. See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008).

2 Furthermore, counsel certified that she sent appellant the form motion for pro se

access to the records for his response. See Kelly v. State, 436 S.W.3d 313, 322 (Tex.

Crim. App. 2014). Appellant did not file a pro se response.

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 (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.

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

motion to withdraw.1 See TEX. R. APP. P. 43.2(a). Attorney Angela Cameron must

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. 3 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 Justices Kelly, Goodman, and Countiss.

Do not publish.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