NUMBER 13-08-00321-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

ERIC ALLEN GERLAND, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 107th District Court of

Cameron County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Chief Justice Valdez

On January 27, 2007, appellant, Eric Allen Gerland, was indicted on one count of

murder, a first-degree felony. See TEX.PENAL CODE ANN. § 19.02(b)(1), (2) (Vernon 2003).

The indictment alleged that Gerland (1) intentionally or knowingly caused Cathy Jill

Vanderhee’s death by striking her head against a metal vent or an unknown object; or (2)

with intent to cause serious bodily injury, committed an act clearly dangerous to

Vanderhee’s life by striking her head against a metal vent or an unknown object, which
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caused Vanderhee’s death. Gerland pleaded not guilty, and the case was tried to a jury.

The jury found Gerland guilty and assessed punishment at forty-five years’ confinement.

The trial court entered a judgment of conviction and sentenced Gerland according to the

jury’s verdict. Gerland’s court-appointed appellate counsel has filed an Anders brief. We

affirm.

I. ANDERS BRIEF

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), Gerland’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) (“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), Gerland’s counsel has carefully discussed why, under controlling authority, 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 Gerland, and (3) informed Gerland
 The Texas Court of Criminal Appeals has held that “the pro se response need not comply with the 1

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.–W aco 1997, no pet.)).

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of his right to review the record and to file a pro se response within thirty days. See 1

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. Gerland has filed a pro se response in which he argues that: (1) he

was subject to “multiplicitous prosecution” because the jury was instructed on the two

theories of murder contained in the single count indictment; (2) the evidence is insufficient

to support his conviction; and (3) he was afforded ineffective assistance of trial counsel.

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, counsel’s brief, Gerland’s pro se

response, and the State’s brief, 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) (“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, Gerland’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.
 No substitute counsel will be appointed. Should appellant wish to seek further review of this case 2

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.

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App.–Dallas 1995, no pet.) (noting that “[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. Within five days of the date of this Court’s opinion, counsel is ordered

to send a copy of the opinion and judgment to Gerland and to advise him of his right to file

a petition for discretionary review. See TEX.R.APP.P. 48.4; see also In re Schulman, 252 2

S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

________________________

ROGELIO VALDEZ

Chief Justice

Do Not Publish. 

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

Delivered and filed

the 3rd day of December, 2009.