Brandon Wade Hermann v. State ( 2018 )

NUMBER 13-17-00114-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
BRANDON WADE HERMANN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the County Court at Law No. 1
of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Justice Longoria
This is an appeal from a conviction for assault causing bodily injury. Hermann’s
court-appointed counsel has filed an Anders brief. See Anders v. California, 386 U.S.
738, 744 (1967). We affirm.
I. ANDERS BRIEF
Pursuant to Anders, appellant’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 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).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978), appellant’s counsel carefully discussed why, under controlling authority, there
is no reversible error in the trial court's judgment. Counsel has informed this Court, in
writing, that counsel has: (1) notified the appellant that counsel has filed an Anders brief
and a motion to withdraw; (2) provided appellant with a copy of the Anders brief; (3)
informed the appellant of his rights to file a pro se response 1 and review the record
preparatory to filing that response; and (4) provided the appellant with a form motion for
pro se access to the appellate record with instructions to file the motion in this Court. See
Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319; Stafford, 813 S.W.2d at 510 n.3; see
also In re Schulman, 252 S.W.3d at 409 n.23. Hermann has not filed a pro se response.
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).
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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). If a later pro se brief is filed after an Anders brief has been submitted on
behalf of the appellant, the Court of Criminal Appeals has in Bledsoe stated an appellate
court has two choices. Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005).
We may determine the appeal is wholly frivolous and issue an opinion after reviewing the
record and finding no reversible error. Id. at 826–827. Alternatively, if we determine that
arguable grounds for appeal exist, we must remand for the appointment of new counsel
to brief those issues. Id. at 827.
We have conducted an independent review of the record and appellate counsel's
brief and find no reversible error. See Anders, 386 U.S. at 744; Garner v. State, 300
S.W.3d 763, 766 (Tex. Crim. App. 2009); Bledsoe, 178 S.W.3d at 826–27. We agree
with counsel that the record presents no arguably meritorious grounds for review and the
appeal is frivolous. We affirm the judgment of the trial court.
III. MOTION TO WITHDRAW
ln accordance with Anders, Hermann’s attorney has asked this Court for
permission to withdraw as counsel. See Anders, 386 U.S. at 744; see also ln 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.) ("[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
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motion 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 Hermann and to advise him of
his right to file a petition for discretionary review. 2 See TEX. R. APP. P. 48.4; see also ln
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
Counsel's motion to withdraw is granted. We affirm the trial court’s judgment.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
31st day of May, 2018.
2 No substitute counsel will be appointed. If Hermann seeks 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 was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary
review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4.
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