Robert Elmer Tanner v. State of Texas--Appeal from 230th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-01-119-CR

No. 10-01-120-CR

ROBERT ELMER TANNER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 230th District Court

Harris County, Texas

Trial Court Nos. 866,357 and 864,426

MEMORANDUM OPINION

In January 2001, Robert Elmer Tanner pled guilty to separately indicted offenses of burglary of a habitation and unlawful use of a motor vehicle. He was sentenced to concurrent terms of ten years on the burglary and sixteen months on the motor vehicle charge. Thirteen days after the two judgments were entered, Tanner filed a pro se, hand-written notice of appeal referencing both judgments. The trial court appointed a lawyer who filed another joint notice of appeal. We docketed the appeals separately.

On May 15, 2001, the following were filed in our court:

" Appellant s Anders brief for both cases which included a Notice to Appellant

" Appellant s attorney s Motion to Withdraw in both cases

" the State s waiver of brief on appeal in both cases

In Sowels v. Texas, we discussed our procedures in Anders cases. 45 S.W.3d 690 (Tex. App. Waco 2001, no pet.). Anders v. California discusses a court-appointed appellate attorney s obligations when the record contains no issues which might arguably support an appeal. 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967). After affirming the judgment in Sowels, we described in detail how Anders cases are processed in our court. Those procedures are as follows:

1. The appellant s attorney must submit a brief from which it is clear the attorney has diligently searched the record for any issues which might arguably support an appeal and found none.

2. We recommended that the appellant s attorney send us a Notice of Filing of Anders Brief so we will be alerted to this fact as soon as possible.

3. The appellant s attorney must supply us with a notice, letter, or other written document indicating or asserting that the attorney has:

(A) provided a copy of the brief to the appellant;

(B) made it clear to the appellant that the attorney has concluded there are no issues which might arguably support an appeal, and the attorney is communicating that to the appellate court;

(C) fully informed the appellant of his or her right to review the record; and

(D) fully informed the appellant of his or her right to file a pro se brief or other response.

4. After the Anders brief has been filed and the attorney has met the obligations described in A , B , C , and D , the appellant has thirty days to file a pro se brief or other response, or to file a motion for extension of time in which to do so.

5. If the appellant files a pro se brief or other response, the State has a right to file a brief or other appropriate response, or a written waiver thereof. On receipt of the State s response or waiver, we will independently review the record for any issues which might arguably support an appeal.

6. If we find any issues which might arguably support an appeal, we will proceed as required.

7. If we agree there are no issues which might arguably support an appeal, we will affirm the judgment.

8. If the appellant s attorney wishes to withdraw at any time, the attorney must present a motion to the trial court which appointed the attorney. A copy of any order of withdrawal must be filed by the attorney with us.

We have reviewed the records in both of Tanner s cases, and we find that the above requirements have been met. The Anders brief shows that Tanner s attorney professionally and systematically examined the entire record for issues which might arguably support an appeal, including jurisdiction in the trial court, and concluded there were none. The Notice to Appellant and Certificate of Service contained in the Anders brief complies with 3" above. Tanner did not file a pro se brief or other response. Our independent review of the record did not reveal any issues which might arguably support an appeal. Therefore, we affirm the judgment in each case. Appellate counsel must inform Powell of the results of this appeal and of his right to file a petition for discretionary review. Sowels, 45 S.W.3d at 694.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed September 12, 2001

Do not publish

CR25