William Stirling Pick v. The State of Texas Appeal from 24th District Court of Calhoun County (memorandum opinion)

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NUMBER 13-19-00324-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG WILLIAM STIRLING PICK, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 24th District Court of Calhoun County, Texas. MEMORANDUM OPINION Before Justices Benavides, Hinojosa, and Tijerina Memorandum Opinion by Justice Benavides Appellant William Stirling Pick appeals from the revocation of his 2009 deferred adjudication community supervision for burglary of a habitation, a second-degree felony. See TEX. CODE CRIM. PROC. ANN. art. 42A.101; TEX. PENAL CODE ANN. § 30.02(c)(2). After finding the State’s allegations on counts one through four of the motion to revoke to be true, 1 the trial court imposed a sentence of twenty years’ imprisonment in the Texas Department of Criminal Justice–Institutional Division. See TEX. PENAL CODE ANN. § 12.33(a). Pick’s court-appointed appellate counsel has filed a motion to withdraw and an Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm. I. ANDERS BRIEF Pursuant to Anders, Pick’s 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 none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities.”) (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex. App.—Corpus Christi–Edinburg 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, Pick’s counsel carefully discussed why, under controlling authority, there is no reversible error in the trial court’s judgment. See Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014); High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). Pick’s counsel also 1 The State alleged in the first four counts: (1) unlawful possession of a firearm by a felon and possession of a controlled substance of greater than one gram and less than four grams in a drug-free zone, (2) criminal trespass in Nueces County, (3) inciting a riot in the Calhoun County Adult Detention Center, and (4) leaving his county of residence without first securing permission in writing from the probation officer in violation of the terms of his supervision. 2 notified this Court that he: (1) informed Pick that he has filed an Anders brief and a motion to withdraw; (2) provided Pick with copies of both pleadings; (3) informed Pick of his rights to file a pro se response,2 review the record preparatory to filing that response, and seek discretionary review if we conclude that the appeal is frivolous; (4) provided Pick with a copy of the appellate record; and (5) informed Pick that the pro se response, if any, should identify for the Court those issues which he 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; see also In re Schulman, 252 S.W.3d at 409 n.23. Pick did not file a pro se response. 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 U.S. 75, 80 (1988). A court of appeals has two options when an Anders brief is 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. Kelly, 436 S.W.3d at 319; Bledsoe v. State, 178 S.W.3d 824, 826– 27 (Tex. Crim. App. 2005). If the court finds arguable grounds for appeal, it may not review those grounds until after new counsel has briefed those issues on appeal. Bledsoe, 178 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 the case presents any meritorious issues.” See In re Schulman, 252 S.W.3d 403, 407 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)). 2 3 S.W.3d 824 at 827. We have reviewed the entire record and counsel’s brief; we have found nothing that would arguably support an appeal. See id. 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 requirement of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. There is no reversible error in the record. III. MOTION TO WITHDRAW In accordance with Anders, Pick’s counsel 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 (“[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.”) (quoting Jeffery v. State, 903 S.W.2d 776, 779–80 (Tex. App.—Dallas 1995, no pet.)). We grant counsel’s 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 Pick and advise him of his right to file a petition for discretionary review.3 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). 3 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 overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals, see id. R. 68.3 and should comply with the requirements of the Texas Rule of Appellate Procedure 68.4. See id. R. 68.4. 4 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 5th day of March, 2020. 5