Benjamin Pierson v. The State of Texas--Appeal from 410th District Court of Montgomery County

NUMBER 13-07-00238-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

BENJAMIN PIERSON, Appellant,

 

v.

 

THE STATE OF TEXAS, Appellee.

 

On appeal from the 410th District Court of

Montgomery County, Texas.

MEMORANDUM OPINION

 
Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Chief Justice Valdez

Appellant, Benjamin James Pierson, pleaded guilty to possession of a controlled substance, cocaine, of four grams or more but less than 200 grams. See Tex. Health & Safety Code Ann. 481.115(d) (Vernon 2003). The trial court assessed punishment at five years' confinement. Agreeing with appointed counsel's conclusion that the record fails to show an arguable basis on appeal, we affirm the judgment and grant counsel's motion to withdraw.

I. Compliance with Anders v. California

Appellant's court-appointed counsel filed an Anders brief in which he has concluded that there is nothing that merits review on direct appeal. Anders v. California, 386 U.S. 738, 744 (1967). Appellant's brief meets the requirements of Anders. Id. at 744-45; see High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). In compliance with Anders, counsel presented a professional evaluation of the record and referred this Court to what, in his opinion, are all issues which might arguably support an appeal. See Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see also High, 573 S.W.2d at 812. Counsel informed this Court that: (1) he had diligently read and reviewed the record and the circumstances of appellant's conviction; (2) he believes that there are no arguable grounds to be advanced on appeal; and (3) he has forwarded to appellant a copy of the brief filed in support of his motion to withdraw with a letter informing appellant of his right to review the record and to file a pro se brief. See Anders, 386 U.S. at 744-45; see also Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991); High, 573 S.W.2d at 813. More than thirty days have passed, and appellant has not filed a pro se brief. See Anders, 386 U.S. at 744-45; see also High, 573 S.W.2d at 813.

II. Independent Review

The supreme court advised appellate courts that upon receiving a "frivolous appeal" brief, they must conduct "a full examination of all the proceedings to decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.-Corpus Christi 2003, no pet.). Accordingly, we have carefully reviewed the record and have found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005); Stafford, 813 S.W.2d at 509. We agree with counsel that the appeal is wholly frivolous and without merit. See Bledsoe, 178 S.W.3d 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 requirements of Texas Rule of Appellate Procedure 47.1."). Accordingly, we affirm the judgment of the trial court.

III. Motion to Withdraw

An appellate court may grant counsel's motion to withdraw in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); Stafford, 813 S.W.2d at 511 (noting that Anders brief should be filed with request to withdraw from case). We grant counsel's motion to withdraw. We order counsel to advise appellant promptly of the disposition of the case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).

 

ROGELIO VALDEZ

Chief Justice

 

Do not publish.

Tex. R. App. P. 47.2(b).

 

Memorandum Opinion delivered and filed

this the 18th day of October, 2007.