Tonjia Scarborough v. State ( 2016 )

IN THE
TENTH COURT OF APPEALS
No. 10-16-00175-CR
No. 10-16-00176-CR
No. 10-16-00177-CR
TONJIA SCARBOROUGH,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 87th District Court
Freestone County, Texas
Trial Court Nos. 15-122-CR, 15-123-CR, 15-124-CR
MEMORANDUM OPINION
In appellate cause numbers 10-16-00175-CR, 10-16-00176-CR, and 10-16-00177-CR,
appellant, Tonjia Scarborough, was charged by indictment with driving while
intoxicated, a third offense or more. See TEX. PENAL CODE ANN. §§ 49.04, 49.09 (West
Supp. 2016). Pursuant to a plea agreement with the State, appellant pleaded guilty to the
charged offense in each appellate cause number. Additionally, appellant pleaded “true”
to the enhancement paragraphs in the indictment in each appellate cause number. The
case proceeded to trial on punishment.
At the conclusion of the punishment phase, the trial court assessed punishment at
eighteen years’ confinement in the Institutional Division of the Texas Department of
Criminal Justice in each case. The trial court also ordered that the imposed sentences run
concurrently. Thereafter, the trial court certified appellant’s right to appeal the
punishment phase only in each of the appellate cause numbers. These appeals followed.
I. ANDERS BRIEF
Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d
493 (1967), appellant’s court-appointed appellate counsel has filed briefs and motions to
withdraw in each case with this Court, stating that his review of the record yielded no
grounds of error upon which appeals can be predicated. Counsel’s briefs meet the
requirements of Anders as they present 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 2003, no pet.)); Stafford v. State,
813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc).
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In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]
1978), appellant’s counsel has carefully discussed why, under controlling authority, there
are no reversible errors in the trial court’s judgments. In each appellate cause number,
counsel has informed this Court that he has: (1) examined the record and found no
arguable grounds to advance on appeal; (2) served a copy of the brief and counsel’s
motion to withdraw on appellant; and (3) provided appellant with a copy of the record
and informed her of her right to file a pro se response.1 See Anders, 386 U.S. at 744, 87 S.
Ct. at 1400; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23.
More than an adequate period of time has passed, and appellant has not filed a pro se
response in any of these cases.2 See In re Schulman, 252 S.W.3d at 409.
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, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988). We have reviewed the entire record
and counsel’s briefs and have found nothing that would arguably support an appeal in
1 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.’” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008)
(quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)).
2In his transmittal letter to appellant, appellate counsel indicated that he provided appellant with
a copy of the Reporter’s and Clerk’s record in these cases. Accordingly, we have fair assurance that
appellant has had sufficient access to the record to assist in filing a pro se response, though no response
has been filed. See Kelly v. State, 436 S.W.3d 313, 321-22 (Tex. Crim. App. 2014).
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any of the appellate cause numbers. 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 requirement of Texas Rule of Appellate
Procedure 47.1.”); Stafford, 813 S.W.2d at 509. Accordingly, we affirm the judgments of
the trial court.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s attorney has asked this Court for
permission to withdraw as counsel in these cases. See Anders, 386 U.S. at 744, 87 S. Ct. at
1400; see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776,
779-80 (Tex. App.—Dallas 1995, no pet.) (“If 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
motions to withdraw. Within five days of the date of this Court’s opinion, counsel is
ordered to send a copy of this opinion and this Court’s judgment to appellant and to
advise her of her right to file a petition for discretionary review in each appellate cause
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number.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).
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed October 12, 2016
Do not publish
[CR25]
3 No substitute counsel will be appointed. Should appellant wish to seek further review of these
cases by the Texas Court of Criminal Appeals, she must either retain an attorney to file a petition for
discretionary review or must file a pro se petition for discretionary review. 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 was 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 id. at R. 68.3. Any petition for discretionary review should comply with the
requirements of rule 68.4 of the Texas Rules of Appellate Procedure. See id. at R. 68.4; see also In re Schulman,
252 S.W.3d at 409 n.22.
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