BEN MARSHALL, JR. v. THE STATE OF TEXAS--Appeal from 28th District Court of Nueces County

NUMBER 13-06-650-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

BEN MARSHALL, JR., Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

On appeal from the 28th District Court

of Nueces County, Texas

MEMORANDUM OPINION

 
Before Justices Ya ez, Rodriguez, and Garza
Memorandum Opinion by Justice Rodriguez

On November 1, 2006, after a bench trial, the court found appellant, Ben Marshall, Jr., guilty of possession of a firearm, a third-degree felony, and that he was a habitual felony offender. See Tex. Pen. Code Ann. 12.42(d), 46.04 (Vernon Supp. 2006). The trial court sentenced appellant to 25-years' incarceration in the Texas Department of Corrections. Appellant's counsel filed an Anders brief in which she presented two arguable grounds of error. We affirm.

I. Compliance with Anders v. California

Appellant's court-appointed counsel filed a brief in which she has concluded that the appeal presents no legally nonfrivolous question. 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. [Panel Op.] 1978). In compliance with Anders, counsel presented a professional evaluation of the record and referred this Court to what, in her 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 has informed the Court that she notified appellant of the following: (1) after reviewing the record, she was unable to find a meritorious basis for appeal; (2) she is requesting to withdraw as counsel; and (3) appellant has the right to review the appellate 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) (en banc); High, 573 S.W.2d at 813. Counsel has forwarded appellant a copy of the brief that sets forth all issues which might arguably support an appeal and a copy of her motion to withdraw as attorney of record. She has also made the record available to appellant. More than thirty days have passed, and appellant has not filed any pro se brief. See Anders, 386 U.S. at 744-45; see also High, 573 S.W.2d at 813.

II. Discussion

In compliance with Anders, counsel raises and reviews the following issues as possible grounds for our review: (1) whether the trial court erred or abused its discretion in denying appellant's motion to suppress; and (2) whether there was legally or factually sufficient evidence to support the mens rea requirement of the offense. Counsel notes that while the evidence at the motion to suppress was marginal in indicating that there was a reasonable suspicion of imminent criminal conduct, the additional evidence admitted at trial when they re-litigated the suppression issue bolstered the State's position. As counsel concludes, the scope of review and harmless error rule thus prevent an argument based solely on the truncated evidence offered at the hearing on the motion to suppress. See Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996) (en banc) (holding that it is unreasonable to ignore trial evidence in the review of the court's suppression decision only to be confronted by that trial evidence in the determination of whether the error was harmless). Additionally, while the evidence was conflicting on whether appellant intentionally, knowingly, or recklessly possessed the firearm, the evidentiary standards on this issue allow inferences to show appellant's culpable mental state. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991) ("Mental culpability is of such a nature that it generally must be inferred from the circumstances under which a prohibited act or omission occurs."). Based on her analysis, counsel informs this Court that these issues appear to be without merit.

The Supreme Court advised appellate courts that upon receiving a "frivolous appeal" brief, they must conduct "a full examination of all the proceeding[s] 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 considered the issues raised in the brief, and we have found nothing that would arguably support an appeal. See Stafford, 813 S.W.2d at 509. We agree with counsel that there is no basis for presenting any legally nonfrivolous issue and conclude the appeal is wholly frivolous and without merit. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (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 requirements of Texas Rule of Appellate Procedure 47.1.").

III. Conclusion

The judgment of the trial court is affirmed. Additionally, in accordance with Anders, appellant's counsel filed a motion requesting permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744. Having carried that motion with the case, we now grant counsel's motion to withdraw. We order counsel to notify appellant of the disposition of this appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (en banc) (per curiam).

NELDA V. RODRIGUEZ

Justice

 

Do not publish.

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

 

Memorandum Opinion delivered and

filed this 2nd day of August, 2007.