NUMBER 13-08-00616-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

IN THE MATTER OF R.M., III, A CHILD

 

On appeal from the 449th District Court 

of Hidalgo County, Texas, Sitting as a Juvenile Court.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Benavides

Memorandum Opinion by Justice Rodriguez

In 2003, at the age of sixteen, appellant, R.M., III, drove a vehicle that was involved

in a gang-related shooting. The passenger of the vehicle shot at a residence, striking two

adults and a three-year-old girl. The three-year-old girl died. Appellant cooperated with

authorities and on June 10, 2004, after testifying at the trial of the adult co-defendant who

fired the weapon, pleaded true to the offense of murder. See TEX. PENAL CODE ANN. §

19.02 (Vernon 2003). The trial court sentenced appellant to the Texas Youth Commission

(TYC) for a determinate sentence of twelve years.
At the motion to transfer hearing, the parties stipulated that appellant was twenty years old. 1

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On July 3, 2008, the TYC requested that a transfer hearing be conducted to

determine whether appellant should be transferred to the Texas Department of Criminal

Justice–Institutional Division (TDCJ–ID). The TYC stated that appellant had not yet

completed his twelve-year sentence and that TYC believed appellant's conduct within the

TYC indicated that the welfare of the community required his transfer. See Act of May 27,

1995, 74th Leg., R.S., ch. 262, § 61, 1995 TEX. GEN. LAWS 2517, 2572 (amended 2007)

(giving TYC authority to refer a child to the juvenile court for transfer to TDCJ–ID before

the child becomes twenty-one years of age) (current version at TEX. HUM. RES. CODE ANN.

§ 61.079(a) (Vernon Supp. 2009)); In re J.J., 276 S.W.3d 171, 174-77 (Tex. App.–Austin

2008, pet. denied) (providing that the provision of the human resources code governing a

transfer in effect at the time a juvenile was adjudicated delinquent governs a referral of the

juvenile by TYC for transfer). On August 25, 2008, the trial court entered an order

transferring appellant into the custody of the TDCJ–ID for completion of his twelve-year

sentence. See TEX. FAM. CODE ANN. § 54.11(i)(2) (Vernon Supp. 2009). Appellant 1

appeals from the trial court's transfer order. See id. § 56.01(c)(2) (Vernon Supp. 2009).

Concluding that the record contains no reversible error and no jurisdictional defects,

appellant's counsel filed an Anders brief in which he reviewed the merits, or lack thereof,

of the appeal. We affirm.

I. 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 "there are
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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no arguable grounds for reversal." See id.; In re D.A.S., 973 S.W.2d 296, 299 (Tex. 1998)

(orig. proceeding) (applying procedures enumerated in Anders to juvenile matters).

Counsel’s brief discusses relevant portions of the record as they pertain to the following:

(1) the sufficiency of the evidence to support the transfer; and (2) objections made by

defense counsel at the transfer hearing. 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).

Including record references to the facts and setting out pertinent legal authorities,

appellant's counsel has carefully discussed why, under controlling authority, there are no

errors in the trial court's order transferring appellant from the TYC to the TDCJ–ID. See

High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). Counsel has

stated to this Court that he is unable to raise any arguable issue for appeal and has

forwarded a copy of the brief and his request to withdraw as counsel to appellant. Counsel

also provided appellant with a copy of the record and informed appellant of his right to

review the record and to file a pro se response. See Anders, 386 U.S. at 744; Stafford,

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813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. More than an
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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.

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

transfer order 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.) ("If 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

that was carried with the case on November 3, 2009. 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
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

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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and to advise appellant of his right to file a petition for discretionary review. See TEX. R. 3

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

Delivered and filed the 17th

day of December, 2009.