Joseph Mike Devia v. State ( 2014 )

Opinion issued July 31, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00992-CR
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JOSEPH MIKE DEVIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Case No. 1329162
MEMORANDUM OPINION
Appellant, Joseph Mike Devia, was charged by indictment with the offense
of capital murder. Appellant pleaded guilty to the lesser offense of murder without
an agreed recommendation by the State as to punishment, but with an agreed
maximum sentence of 60 years’ imprisonment. The trial court sentenced appellant
to 45 years’ imprisonment. Appellant timely filed a notice of appeal.
Appellant’s appointed counsel on appeal has filed a motion to withdraw,
along with a brief stating that the record presents no reversible error and the appeal
is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct.
1396 (1967). Counsel’s brief meets the Anders requirements by presenting a
professional evaluation of the record and supplying us with references to the record
and legal authority. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v.
State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has
thoroughly reviewed the record and he is unable to advance any grounds of error
that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v.
State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
We independently reviewed the entire record in this appeal, and we conclude
that no reversible error exists in the record, there are no arguable grounds for
review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400
(emphasizing that reviewing court—and not counsel—determines, after full
examination of proceedings, whether appeal is wholly frivolous); Garner v. State,
300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine
whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824,
826–27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing
court determines whether arguable grounds exist by reviewing entire record). We
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note that an appellant may challenge a holding that there are no arguable grounds
for appeal by filing a petition for discretionary review in the Texas Court of
Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.
We affirm the judgment of the trial court and grant counsel’s motion to
withdraw.1 Attorney Jerald K. Graber must immediately send appellant the
required notice and file a copy of the notice with the Clerk of this Court. See TEX.
R. APP. P. 6.5(c). Any other pending motions are dismissed as moot.
PER CURIAM
Panel consists of Justices Jennings, Bland, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
1
Appointed counsel still has a duty to inform appellant of the result of this appeal
and that he may, on his own, pursue discretionary review in the Texas Court of
Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App.
1997).
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