NUMBERS 13-14-00101-CR & 13-14-00102-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

DOUGLAS SHANE MAREK, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 24th District Court

of Calhoun County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Benavides

Memorandum Opinion by Justice Benavides

On January 16, 2014, appellant Douglas Shane Marek pleaded guilty to criminal 

mischief, a state jail felony, see TEX. PEN. CODE ANN. § 28.03 (West, Westlaw 2013 

through 3d C.S.), and was sentenced to two years in the Texas Department of Criminal 
2

Justice State Jail Division.

1 See id. § 12.35 (West, Westlaw 2013 through 3d C.S.). 

That same day, Marek pleaded no contest to the offense of evading arrest with a prior 

conviction, another state jail felony, see id. § 38.04 (West, Westlaw 2013 through 3d 

C.S.), and was sentenced to another two years in the TDCJ State Jail Division.2 See id. 

§ 12.35. The trial court ordered the sentences to run concurrently. 

Marek appealed his convictions.3 Appellant’s court-appointed counsel has filed 

an Anders brief for each appeal. See Anders v. California, 386 U.S. 738, 744 (1967). 

We affirm.

I. ANDERS BRIEF

Pursuant to Anders v. California, appellant’s court-appointed appellate counsel

has 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. See id. 

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).

 

1 The cause number for this offense at the Nueces County trial court level was 13-CR-1917.

2

 The cause number for this offense at the Nueces County trial court level was 13-CR-3955.

3 Even though he pleaded guilty, the trial court certified Marek’s right to appeal in both causes of 

action. 
3

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel 

Op.] 1978) and Kelly v. State, PD-0702-13, 2014 WL 2865901, at *3 (Tex. Crim. App. 

June 25, 2014), appellant’s counsel carefully discussed why, under controlling authority, 

there is no reversible error in the trial court's judgment. Counsel has informed this 

Court, in writing, that counsel has: (1) notified the appellant that counsel has filed an 

Anders brief and a motion to withdraw; (2) provided the appellant with copies of both 

pleadings; (3) informed the appellant of appellant’s rights to file a pro se response,

4

review the record preparatory to filing that response, and seek discretionary review if the 

court of appeals concludes that the appeal is frivolous; and (4) provided appellant with a 

form motion for pro se access to the appellate record, lacking only the appellant’s 

signature and the date and including the mailing address for the court of appeals, with 

instructions to file the motion within ten days. See Anders, 386 U.S. at 744; Kelly, 2014 

WL 2865901, at *3, Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 

S.W.3d at 409 n.23. 

In this case, appellant filed neither a timely motion seeking pro se access to the 

appellate record nor a motion for extension of time to do so. No pro se brief was filed. 

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). A court of appeals has two options when an Anders brief and a 

subsequent pro se response are filed. After reviewing the entire record, it may: (1) 

 

4 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.)).
4

determine that the appeal is wholly frivolous and issue an opinion explaining that it finds 

no reversible error; or (2) determine that there are arguable grounds for appeal and 

remand the case to the trial court for appointment of new appellate counsel. Bledsoe v. 

State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). If the court finds arguable 

grounds for appeal, it may not review those grounds until after new counsel has briefed 

those issues on appeal. Id.

We have reviewed the entire record and counsel’s brief, and we have found 

nothing that would arguably support an appeal. See id. at 827–28 (“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. There is no reversible error in the record. Accordingly, the judgment of the trial 

court is affirmed.

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.) (“[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 this opinion and this Court’s judgment to appellant and to 
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advise him of his right to file a petition for discretionary review.5 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).

__________________________

GINA M. BENAVIDES,

Justice

Do not publish.

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

Delivered and filed the

7th day of August, 2014.

 

5 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 or 

timely motion for en banc reconsideration 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. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with 

the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4.