### NUMBER S 13 - 1 4 - 00 101 - CR & 13 - 14 - 00102 - CR 

## COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

- 

## EDINBURG

DOUGLAS SHANE MAREK , A ppellant,

v. THE STATE OF TEXAS , Appellee.

On appeal from the 2 4th District Court o f Calhoun County, Texas.


## M EMORANDUM 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 T EX

. P EN

. C ODE A NN . § 28.03 (West , Westlaw 2013 through 3d C.S.) , and was sentenced to two years in the Texas Department of Criminal2

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 arre st 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 concurrent ly. 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. A NDERS B RIEF Pursuant to Anders v. California , appellant’ s court
- app ointed 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 grou nds 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 erro r 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 g uilty, 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. Ap p. [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 disc ussed 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 ) inform ed the appellant of appellant’s right s 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 t hat 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 a ddress 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. I NDEPENDENT R EVIEW 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 resp onse should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case p resents 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 opini on 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 reviewe d 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 Tex as Ru le 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. M OTION TO W ITHDRAW 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 cour t that the appeal is frivolous.” ) (citations omi tted)). We grant counse l’ 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 to5

advise him of his right to file a pet ition for discretion ary review. 5 See T EX

. R. A PP

. 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 p ublish. T EX

. R. A PP

. P. 47

. 2 ( b )

. Deliver ed and filed the 7th day of August , 201 4

.

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 peti tion 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 b anc reconsideration that was overruled by this Court. See T EX

. R. A PP

. 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 T EX

. R. A PP

. P. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See T EX

. R. A PP

. P . 68.4.