NUMBER 13-08-00071-CR

 NUMBER 13-08-00075-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

 

PHILLIP BROWN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 24th District Court of Refugio County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Benavides

Memorandum Opinion by Justice Benavides

In 1998, Phillip Brown was indicted for sexual assault of a child. TEX. PENAL CODE

ANN. § 22.021 (Vernon Supp. 2008). He pleaded guilty and was placed on two years of
 The State had filed previous motions to adjudicate guilt and petitions for revocation of probated 1

sentence, which resulted in the addition of conditions to appellant’s community supervision.

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deferred adjudication community supervision. The term of community supervision was

extended for an additional eight years, in lieu of an adjudication of guilt based upon a new

indictment for possession of a controlled substance. 

In 1999, Brown was indicted for possession of a controlled substance. TEX.HEALTH

& SAFETY CODE ANN. § 481.115(d) (Vernon 2003). He pleaded guilty and was placed on

deferred adjudication community supervision for ten years. 

In August 2007, the State of Texas filed a motion to revoke community supervision

for failure to comply with the terms of supervision for each offense. A hearing was held, 1

and the trial court found that Brown had violated his community supervision and

adjudicated him guilty on both offenses. After the sentencing hearing, Brown was

sentenced to twenty years’ imprisonment in the Texas Department of Criminal Justice for

each count, to run concurrently. Brown’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 appeal. We affirm.

I. DISCUSSION

A. Compliance with Anders v. California

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
 The Texas Court of Criminal Appeals has held that “the pro se response need not comply with the 2

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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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), appellant'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 appellant, and (3) informed

appellant of his right to review the record and to file a pro se response within thirty days.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. More than an adequate period of time has passed, and appellant

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.
 No substitute counsel will be appointed. Should appellant wish to seek further review of this case 3

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

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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) (“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

judgments of the trial court.

III. 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.–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 appellant and to advise appellant of his right to file

a petition for discretionary review. See TEX. R.APP.P. 48.4; see also In re Schulman, 252 3
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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S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006). 

__________________________

GINA M. BENAVIDES,

Justice

Do not publish.

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

Memorandum Opinion delivered and

filed this the 2nd day of July, 2009.