Peggy McCleskey v. State ( 2015 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00118-CR
PEGGY MCCLESKEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court
Gregg County, Texas
Trial Court No. 43127-B
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Hoping to receive community supervision, Peggy McCleskey entered an open plea of
guilty to the offense of possession of methamphetamine in an amount of 200 grams or more but
less than 400 grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(e) (West 2010). After
receiving her written stipulation of evidence and judicial confession to the crime, the trial court
sentenced McCleskey to thirty years’ imprisonment. McCleskey appeals.
On appeal, McCleskey’s attorney has filed a brief which sets out the procedural history
and summarizes the evidence elicited during the course of the proceeding. Meeting the
requirements of Anders v. California, counsel has provided a professional evaluation of the
record demonstrating why there are no arguable grounds to be advanced. Anders v. California,
386 U.S. 738, 743–44 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008)
(orig. proceeding); Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim. App. 1981); High v.
State, 573 S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.] 1978).
Counsel also filed a motion with this Court seeking to withdraw as counsel in this
appeal. 1 Counsel mailed to McCleskey a copy of the brief and the motion to withdraw on
November 12, 2014, and informed her of her right to review the record and file a pro se
1
“An eligible indigent defendant is entitled to have the trial court appoint an attorney to represent him in the
following appellate and postconviction habeas corpus matters: . . . (3) a habeas corpus proceeding if the court
concludes that the interests of justice require representation.” TEX. CODE CRIM. PROC. ANN. art. 1.051(d)(3) (West
Supp. 2014). Desiring to invoke this statute and to raise an ineffective assistance of counsel claim that cannot
adequately be raised here on direct appeal, McCleskey’s counsel has also filed a motion asking this Court to appoint
him as counsel to assist McCleskey during a habeas corpus proceeding. See Salinas v. State, 163 S.W.3d 734, 740
(Tex. Crim. App. 2005) (“In the majority of cases, the record on direct appeal is undeveloped and cannot adequately
reflect the motives behind trial counsel’s actions.”); Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005)
(claims of ineffective assistance of counsel normally best left for habeas corpus proceedings). We deny the motion
because Article 1.051(d) requires the trial court—not this Court—to decide whether the interests of justice require
the appointment of counsel in a post-conviction habeas corpus proceeding. See TEX. CODE CRIM. PROC. ANN. art.
1.051(d) (West Supp. 2014).
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response. Counsel also certified that he “explained the process for obtaining the appellate
record, provided a form Motion for Pro Se Access to the Appellate Record lacking only
Appellant’s signature and the date, and provided the mailing address for this Court.” On
November 14, 2014, we notified McCleskey that her pro se response was due on December 15,
2014. McCleskey has not filed the motion for access to the appellate record, has not filed a pro
se response, and has not requested an extension of time in which to file such a response.
We have determined that this appeal is wholly frivolous. We have independently
reviewed the clerk’s record and the reporter’s record, and we agree that no arguable issues
support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). We
affirm the trial court’s judgment. 2
Josh R. Morriss, III
Chief Justice
Date Submitted: February 3, 2015
Date Decided: February 4, 2015
Do Not Publish
2
Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request to
withdraw from further representation of appellant in this case. See Anders, 386 U.S. at 744. No substitute counsel
will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal
Appeals, appellant must either retain an attorney to file a petition for discretionary review or appellant must file a
pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from
either the date of this opinion or the date on which the last timely motion for rehearing or for en banc
reconsideration 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 TEX. R. APP. P. 68.3. 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.
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