Zenaida Elam v. State

• Court: Court of Appeals of Texas
• Decided: April 19, 2012
• Docket: 13-11-00429-CR
• Status: Published

Opinion

NUMBERS 13-11-00428-CR & 13-11-00429-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ZENAIDA ELAM, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 252nd District Court of Jefferson County, Texas.

MEMORANDUM OPINION Before Justices Benavides, Vela and Perkes Memorandum Opinion by Justice Benavides Zenaida Elam, appellant, pleaded guilty to felony theft and was sentenced to two

years’ probation which was extended for an additional two years. See TEX. PENAL CODE

ANN. ' 31.03 (West 2003). In 2011, the State filed a motion to revoke alleging

numerous violations including a new offense of theft, Cause No. 11-11722. Elam pled true, revocation was granted, and she was sentenced to two years= imprisonment in the

Texas Department of Criminal JusticeCInstitutional Division. In Cause No. 11-11722,

she also pleaded guilty and was sentenced to two years= imprisonment in the Texas

Department of Criminal JusticeCInstitutional Division to run concurrently.

Elam=s appellate counsel, concluding that "there are no arguable grounds to be

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

thereof, of the appeals. We affirm.1

I. DISCUSSION2

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

of the record yielded no grounds or error upon which an appeal can be predicated.

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

present a professional evaluation of the record 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) (AIn 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,

1 These cases were transferred to the Thirteenth Court of Appeals pursuant to a docket equalization order issued by the Supreme Court of Texas. TEX. GOV’T CODE ANN. § 73.001 (West 2005). 2 These cases have been consolidated for the purposes of this opinion on appeal. 2 there are no errors 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; and (3)

informed appellant of her right to review the record and to file a pro se response within

thirty days.3 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. More than an adequate period of time has

passed and Elam has not filed a pro se response. See In Re Schulman, 252 S.W.3d at

409.

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 have

found nothing that would arguably support an appeal. See Bledsoe v. State, 178

S.W.3d 824, 826–28 (Tex. Crim. App. 2005) (ADue 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, appellant=s attorney has asked this Court for

3 The Texas Court of Criminal Appeals has held that Athe 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 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 A[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 motions to withdraw. Within five days of the date of this Court=s opinion,

counsel is ordered to send a copy of the opinion and judgments to appellant and to

advise appellant of his right to file a petition for discretionary review. 4 See TEX. R. APP.

P. 48.4.

__________________________ GINA M. BENAVIDES, Justice

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

Delivered and filed the 19th day of April, 2012.

4 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 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. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.