Terry A. Gatlin v. State ( 2016 )

IN THE
TENTH COURT OF APPEALS
No. 10-16-00228-CR
TERRY A. GATLIN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 66th District Court
Hill County, Texas
Trial Court No. 37,192
MEMORANDUM OPINION
Appellant Terry Gatlin pleaded guilty pursuant to a plea agreement to driving
while intoxicated, third offense or more. The trial court assessed Gatlin’s punishment at
ten years’ imprisonment but then suspended the confinement and placed him on
community supervision for ten years. The State subsequently filed a motion to revoke
Gatlin’s community supervision, alleging that he violated certain terms and conditions
of his community supervision. Gatlin pleaded “true” to the allegations. Accordingly, the
trial court revoked Gatlin’s community supervision and sentenced him to ten years’
imprisonment. This appeal ensued.
Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d
493 (1967), Gatlin’s court-appointed appellate counsel filed a brief and motion to
withdraw with this Court, stating that her review of the record yielded no grounds of
error upon which an appeal can be predicated. 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), Gatlin’s counsel has carefully discussed why, under controlling authority, there is
no reversible error in the trial court’s judgment. Counsel has informed this Court that
she 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 Gatlin; and (3)
Gatlin v. State Page 2
informed Gatlin of his right to review the record and 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 Schulman, 252
S.W.3d at 409 n.23. Gatlin has filed a pro se response, but he raises no arguable grounds
to advance in this appeal.2
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 brief and have found nothing that would arguably support an appeal. 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, the judgment of the trial court is affirmed.
In accordance with Anders, Gatlin’s attorney has asked this Court for permission
to withdraw as counsel for Gatlin. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; see also
Schulman, 252 S.W.3d at 408 n.17 (quoting Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex.
1 The 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.’” Schulman, 252 S.W.3d at 409 n.23 (quoting Wilson v. State, 955 S.W.2d
693, 696-97 (Tex. App.—Waco 1997, no pet.)).
2Counsel has informed this Court that she has provided the clerk’s and reporter’s records to Gatlin. See
Kelly v. State, 436 S.W.3d 313, 321-22 (Tex. Crim. App. 2014).
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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.”)). We grant counsel’s 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 Gatlin and to advise him of his right to file a
petition for discretionary review.3 See TEX. R. APP. P. 48.4; see also Schulman, 252 S.W.3d
at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed December 7, 2016
Do not publish
[CR25]
3No substitute counsel will be appointed. Should Gatlin 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 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 from the date the last timely motion for rehearing 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 Schulman, 252 S.W.3d at 409 n.22.
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