Date: 10-25-2016

Case Style:

Case Number: 10-16-00043-CR

Judge: Al Scoggins

Court: IN THE TENTH COURT OF APPEALS

Plaintiff's Attorney:

Dustin H. Boyd Scott K. Stevens

Defendant's Attorney:

Stan Schwieger

Description: Appellant, Rickey Lee Myers, was charged by indictment with unlawful possession of a controlled substance—methamphetamine—in an amount less than one gram. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2010). At the conclusion of the evidence, the jury found Myers guilty of the charged offense. After Myers pleaded “true” to two enhancement paragraphs pertaining to his prior convictions for forgery and attempted capital murder, the trial court sentenced Myers to fifteen years’ incarceration Myers v. State Page 2 in the Institutional Division of the Texas Department of Criminal Justice. The trial court certified Myers’s right of appeal, and this appeal followed. I. ANDERS BRIEF Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967), Myers’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) (en banc). In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), Myers’s counsel has carefully discussed why, under controlling authority, there are no reversible 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 Myers; and (3) provided Myers with a copy of the record and informed him of his right to file a pro Myers v. State Page 3 se response.1 See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; 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 Myers has not file a pro se response.2 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, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (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, 827-28 (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 judgment of the trial court. 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.)). 2 In his transmittal letter to Myers, appellate counsel indicated that he provided Myers with a copy of the record in this case. Accordingly, we have fair assurance that Myers has had sufficient access to the record to assist in filing a pro se response, though no response has been filed. See Kelly v. State, 436 S.W.3d 313, 321-22 (Tex. Crim. App. 2014). Myers v. State Page 4 III. MOTION TO WITHDRAW In accordance with Anders, Myers’s attorney has asked this Court for permission to withdraw as counsel in this case. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; 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.) (“If 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)).

Outcome: