NUMBERS 13-10-00107-CR AND 13-10-00108-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

TODD ALLEN JANES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 319th District Court 

of Nueces County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Benavides 

Memorandum Opinion by Justice Rodriguez

Appellant Todd Allen Janes appeals from his convictions in trial court cause 

09-CR-3107-G for the offense of felony theft (appellate cause number 13-10-107-CR), 

see TEX. PENAL CODE ANN. ' 31.03 (Vernon Supp. 2010), and trial court cause number 

09-CR-3627-G for unauthorized use of a motor vehicle (appellate cause number 

13-10-108-CR). See id. ' 31.07 (Vernon 2003). Appellant entered an open plea of "no 
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contest" to felony theft and an open plea of "guilty" to the offense of unauthorized use of a 

motor vehicle. The State gave notice of prior felony convictions, which enhanced the 

authorized punishment in each case to a second-degree felony. See id. § 12.42 (Vernon 

Supp. 2010) (setting out penalties for repeat and habitual felony offenders). Janes 

pleaded "true" to the prior convictions. Based on Janes's open pleas and the evidence 

presented, the trial court found him guilty of both offenses. The court also found the prior 

convictions to be true.

Appellant testified at the punishment hearing describing a life-long problem with 

drug addiction and requesting that the trial court give him an opportunity for rehabilitation 

with drug treatment.1 The trial court, however, followed the State's recommendation and 

assessed punishment at twenty years' incarceration in each case with the sentences to 

run concurrently. No fines were imposed.

Concluding that there are "no arguable grounds for reversal," counsel filed an 

Anders brief in which he reviewed the merits, or lack thereof, of the appeals. We affirm 

the judgments of the trial court.

I. COMPLIANCE WITH ANDERS

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

court-appointed appellate counsel has filed one brief in these causes, stating that he 

could "find no meritorious issues to bring forward for review." Counsel=s brief discusses 

relevant portions of the records. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. 

Crim. App. 2008) (orig. proceeding) (AIn Texas, an Anders brief need not specifically 

 

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Appellant's counsel also asked the trial court to consider Cenikor, a rehabilitation program 

described in defense exhibit 1 as a "long-term, therapeutic community recovery program for men and 

women" that "helps to rebuild lives by treating addictive behavior."
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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.BCorpus 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), appellant's counsel has carefully discussed why, under controlling authority, 

there is no error in the trial court's judgment in each case. Counsel certified to this Court 

that he forwarded a copy of his motion to withdraw and its supporting brief to appellant 

with a letter advising him of his right to review each record and to file a pro se response.2 

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.

II. PRO SE RESPONSE

On November 17, 2010, appellant filed one pro se response asserting ineffective 

assistance of trial counsel in both causes. Appellant bases his complaint on the 

following: (1) counsel's alleged failure to perform a thorough pre-sentence investigation 

that would have, as asserted by appellant, established that the truck in which appellant 

was found was valued at less than $20,000; (2) counsel's alleged failure to object to the 

indictments and to file motions to quash the indictments on the basis that the charges "did 

not fit the crime[s]" because appellant "was merely looking for a place to sleep as he was 

homeless at the time of the arrest"; (3) counsel's alleged comment to appellant "that if he 

 

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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) (orig. 

proceeding) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.BWaco 1997, no pet.)).
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plead[ed] guilty[,] ... [counsel] could get him into the Cenikor program," which appellant 

argues forced him to plead guilty; and (4) counsel's alleged failure to object to the State's 

comment to appellant that he should not enter a plea of "not guilty."3

III. INDEPENDENT REVIEW

Upon receiving an Anders brief, this Court 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 record in each case, counsel's 

brief, and appellant's pro se response, and we 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 judgments of the trial court.

IV. 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.BDallas 1995, no pet.) (AIf an attorney believes the appeal is frivolous, he must 

 

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Although appellant’s attempt at a direct appeal has been unsuccessful, he is not without a 

potential remedy. Challenges requiring development of a record to substantiate a claim such as ineffective 

assistance of counsel may be raised in an application for writ of habeas corpus. See TEX. CODE CRIM.

PROC. ANN. art. 11.07 (Vernon Supp. 2010); see also Cooper v. State, 45 S.W.3d 77, 82-83 (Tex. Crim. 

App. 2001) (suggesting that "the legislature may have regarded challenges to voluntariness as better raised 

in habeas corpus than on appeal because the appellate record will often contain insufficient grounds for a 

fair resolution of the claim. The legislature may well have decided to render the issue unappealable but 

only as a means of encouraging its litigation in habeas corpus, where a new and more complete record can 

be developed"). An application for writ of habeas corpus relief would "provide an opportunity to conduct a 

dedicated hearing to consider the facts, circumstances, and rationale behind counsel's actions at . . . trial." 

Thompson v. State, 9 S.W.3d 808, 814-15 (Tex. Crim. App. 1999).
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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 filed in appellate cause numbers 13-10-107-CR and 13-10-108-CR, 

and carried with the case on July 8, 2010. Within five days of the date of this Court=s 

opinion, counsel is ordered to send a copy of the opinion and the 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; 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).

NELDA V. RODRIGUEZ

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the 9th

day of December, 2010.

 

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. Any petition for discretionary review must be filed 

with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals. See TEX. R. APP. P.

68.3; 68.7. 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.