Reid Austin Gathings v. The State of Texas Appeal from 82nd District Court of Falls County (memorandum opinion)
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IN THE TENTH COURT OF APPEALS No. 10-17-00176-CR REID AUSTIN GATHINGS, Appellant v. THE STATE OF TEXAS, Appellee From the 82nd District Court Falls County, Texas Trial Court No. 9750 MEMORANDUM OPINION Reid Austin Gathings was convicted of Theft of Cattle and sentenced to 10 years in prison. See TEX. PENAL CODE ANN. § 31.03(e)(5)(A) (West 2011). Gathings’s sentence was suspended and he was placed on community supervision for 10 years. Gathings’s appellate attorney filed a motion to withdraw and an Anders brief in support of the motion to withdraw, asserting that the appeal presents no issues of arguable merit. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Counsel advised Gathings that counsel had filed the motion and brief pursuant to Anders and provided Gathings a copy of the record, advised Gathings of his right to review the record, and advised Gathings of his right to submit a response on his own behalf. Gathings did not submit a response. Counsel asserts in the Anders brief that counsel has made a thorough review of the entire reporter’s record and clerk’s record, and reviewed voir dire, the guilt and punishment phases of the trial, the sufficiency of the evidence to support the conviction, the punishment imposed, and the trial court’s judgment. After the review, counsel has concluded there is no non-frivolous issue to raise in this appeal. Counsel's brief evidences a professional evaluation of the record for error, and we conclude that counsel performed the duties required of appointed counsel. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). Upon the filing of an Anders brief, as the reviewing appellate court, it is our duty to independently examine the record to decide whether counsel is correct in determining that an appeal is frivolous. See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Arguments are frivolous when they "cannot conceivably persuade the court." McCoy v. Court of Appeals, 486 U.S. 429, 436, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988). Having carefully reviewed the entire record and the Anders brief, we have determined that the appeal is frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). Accordingly, we affirm the trial court's Judgment of Conviction by Jury signed on May 9, 2017. Gathings v. State Page 2 Should Gathings 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 must file a pro se petition for discretionary review. No substitute counsel will be appointed. Any petition for discretionary review must be filed within thirty days from the date of this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration has been overruled by this Court. See TEX. R. APP. P. 68.2. Any petition and all copies of the petition for discretionary review must be filed with the Clerk of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3. (Tex. Crim. App. 1997, amended eff. Sept. 1, 2011). 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. See also In re Schulman, 252 S.W.3d at 409 n.22. Counsel's motion to withdraw from representation of Gathings is granted, and counsel is discharged from representing Gathings in this appeal. Notwithstanding counsel’s discharge, counsel must send Gathings a copy of our decision, notify him of his right to file a pro se petition for discretionary review, and send this Court a letter certifying counsel's compliance with Texas Rule of Appellate Procedure 48.4. TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 409 n.22. TOM GRAY Chief Justice Gathings v. State Page 3 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed December 27, 2017 Do not publish [CR25] Gathings v. State Page 4
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