Michael Ludwig v. State ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00225-CR
MICHAEL LUDWIG,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 66th District Court
Hill County, Texas
Trial Court No. 33,883
MEMORANDUM OPINION
In 2005, appellant, Michael Anthony Ludwig, was charged by indictment with
unauthorized use of a motor vehicle. See TEX. PENAL CODE ANN. § 31.07 (West 2011).
Pursuant to a plea bargain with the State, appellant pleaded guilty to the charged
offense; the trial court deferred an adjudication of guilt and placed appellant on
community supervision for a term of two years.
Thereafter, the State filed a motion to adjudicate guilt, alleging that appellant had
violated seventeen conditions of his community supervision. Appellant pleaded “true”
to the allegations contained in the State’s motion to adjudicate, and the trial court
extended his community supervision an additional eighteen months and ordered that
appellant serve eighty-eight days in the Hill County Jail, among other things.
Later, the State filed a second motion to adjudicate guilt, asserting that appellant
violated six conditions of his community supervision. Appellant pleaded “true” to five
of the six allegations contained in the State’s motion. After a hearing, the trial court
found the State’s allegations to be true and subsequently sentenced appellant to two
years’ incarceration in the State Jail Division of the Texas Department of Criminal
Justice with a $200 fine. Appellant appeals, and we affirm.
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 filed a brief and a 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) (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 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 appellant; and (3) informed appellant 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 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. 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 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
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.)).
2Nowhere in the record or in the documents received by the Court does appellant suggest that he
wants or sought the record but was unable to obtain it. See Kelly v. State, 436 S.W.3d 313, 321-22 (Tex.
Crim. App. 2014).
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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.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s attorney has asked this Court for
permission to withdraw as counsel for appellant. 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 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 appellant
and to advise him of his right to file a petition for discretionary review.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).
3 No substitute counsel will be appointed. Should appellant 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 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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AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed December 4, 2014
Do not publish
[CR25]
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