Jennifer Lynn Morris v. The State of Texas Appeal from 36th District Court of Aransas County (memorandum opinion )

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NUMBER 13-15-00429-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG JENNIFER LYNN MORRIS, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 36th District Court of Aransas County, Texas. MEMORANDUM OPINION Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion by Justice Benavides On February 3, 2011, appellant Jennifer Lynn Morris pleaded guilty to two counts of endangering a child. See TEX. PENAL CODE ANN. § 22.041 (West, Westlaw through 2015 R.S.). The trial court, pursuant to plea agreement, sentenced her to two years’ imprisonment in the Texas Department of Criminal Justice—Institutional Division (TDCJ- ID) and assessed a fine of $250.00, which the trial court deferred and probated for three years. The State filed two motions to revoke against Morris wherein the court allowed Morris to continue on probation. On August 13, 2011, the State filed a third motion to revoke alleging twenty-six violations of probation. in the motion to revoke. Morris pled true to all the allegations These violations included: violating a new law (failure to identify); committing a curfew violation; associating with a known felon; failing to complete outpatient treatment and payment thereof; failing to report to probation and Alcoholics Anonymous meetings from November 2014 through June 2015; and failing to pay probation fees. The trial court found all of the allegations “true,” revoked Morris’s community supervision, and sentenced her to two years’ imprisonment in the TDCJ-ID. court-appointed appellate counsel has filed an Anders brief. Morris’s See Anders v. California, 386 U.S. 738, 744 (1967). We affirm. I. ANDERS BRIEF Pursuant to Anders v. California, Morris’s court-appointed appellate counsel has filed a brief and a motion to withdraw with this Court, stating that his review of the record yielded no grounds of error upon which an appeal can be predicated. See id. Counsel’s brief meets the requirements of Anders as it presents a professional evaluation demonstrating why there are no arguable grounds to advance on appeal. 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 non, but it must provide record references to the facts and procedural history and set out pertinent legal 2 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). In compliance with High v. State and Kelly v. State, Morris’s counsel carefully discussed why, under controlling authority, there is no reversible error in the trial court’s judgment. See High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978); Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014). Morris’s appellate counsel also notified this Court that he: (1) notified Morris that he has filed an Anders brief and a motion to withdraw; (2) provided Morris with copies of both pleadings; (3) informed Morris of his rights to file a pro se response, review the record preparatory to filing that response,1 and seek discretionary review if we concluded that the appeal is frivolous; (4) provided Morris with a copy of the appellate record; and (5) informed Morris that the pro se response, if any, should identify for the Court those issues which she believes the Court should consider in deciding whether the case presents any meritorious issues. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. An adequate time has passed, and Morris had not filed a pro se brief. 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 The Texas Court of Criminal Appeals has held that “the pro se response need not comply with the 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 to case presents any meritorious issues.” In re Schulman, 252 S.W.3d at 409 n.23 (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.). 1 3 U.S. 75, 80 (1988). A court of appeals has two options when an Anders brief and a subsequent pro se response are filed. After reviewing the entire record, it may: (1) determine that the appeal is wholly frivolous and issue an opinion explaining that it finds no reversible error; or (2) determine that there are arguable grounds for appeal and remand the case to the trial court for appointment of new appellate counsel. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). Bledsoe v. If the court finds arguable grounds for appeal, it may not review those grounds until after new counsel has briefed those issues on appeal. Id. We have reviewed the entire record and counsel’s brief, and we have found See id. at 827–28 (“Due to the nature nothing that would arguably support an appeal. 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. There is no reversible error in the record. Accordingly, the judgment of the trial court is affirmed. III. MOTION TO WITHDRAW In accordance with Anders, Morris’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 Jeffrey v. State, 903 S.W.2d 776, 779–80 (Tex. App.—Dallas 1995, no pet.) (“[I]f 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 4 motion to withdraw. Within five days of this Court’s opinion, counsel is ordered to send a copy of this opinion and this Court’s judgment to Morris and advise her of her right to file a petition for discretionary review. 2 See TEX. R. 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). IV. CONCLUSION We affirm the judgment of the trial court. GINA M. BENAVIDES, Justice Do not publish. TEX. R. APP. P. 47.2 (b). Delivered and filed the 14th day of July, 2016. 2 No substitute counsel will be appointed. Should appellant 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 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 or timely motion for en banc reconsideration that was overrule by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals, see TEX. R. APP. P. 68.3, and should comply with the requirements of the Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4. 5

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