Ronnie McMullen A/K/A Ronnie Barnes v. State ( 2015 )


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  •                            NUMBER 13-15-00135-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI – EDINBURG
    RONNIE MCMULLEN
    A/K/A RONNIE BARNES,                                                     Appellant,
    v.
    THE STATE OF TEXAS,                                                      Appellee.
    On appeal from the 347th District Court
    of Nueces County, Texas.
    MEMORANDUM OPINION
    Before Justices Rodriguez, Garza and Longoria
    Memorandum Opinion by Justice Longoria
    Appellant, Ronnie McMullen a/k/a Ronnie Barnes, entered an open plea of guilty
    to a two-count indictment charging him with the offenses of theft (Count 1) and bribery
    (Count 2). See TEX. PENAL CODE ANN. §§ 31.02(a), 36.02(a) (West, Westlaw through
    Chapter 46, 2015 R.S.). Following a hearing, the trial court assessed punishment at two
    years’ imprisonment for Count 1 and eight years’ imprisonment for Count 2. The trial
    court ordered the sentences to run concurrently. As discussed below, appellant’s court-
    appointed counsel has filed a motion to withdraw accompanied by an Anders brief. See
    Anders v. California, 
    386 U.S. 738
    , 744 (1967). We affirm.
    I. ANDERS BRIEF
    Pursuant to Anders v. California, 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) and Kelly v. State, 
    436 S.W.3d 313
    , 319 (Tex. Crim. App. 2014), appellant’s
    counsel carefully discussed why, under controlling authority, there is no reversible error
    in the trial court's judgment.1 Counsel has informed this Court, in writing, that counsel
    1 Counsel informed us that he specifically considered whether: (1) the indictment was sufficient;
    (2) there were any adverse pretrial rulings; (3) the trial court complied with Padilla v. Kentucky, 
    559 U.S. 356
    , 359 (2010) and article 26.13 of the Texas Code of Criminal Procedure; (4) there was an issue of
    appellant’s competency raised in the trial court; (5) appellant’s plea was voluntary; (6) there were any
    adverse rulings during the sentencing phase; (7) the record reflected fundamental error; (8) the sentence
    imposed by the trial court was within the range authorized by law; (9) the written judgment accurately
    reduced the oral pronouncement of sentence to writing; (10) the evidence was sufficient to support the plea;
    and (11) appellant’s trial counsel provided effective assistance, but concluded that there were no arguable
    issues that could form the basis of an appeal.
    2
    has: (1) notified the appellant that counsel has filed an Anders brief and a motion to
    withdraw; (2) provided the appellant with copies of both pleadings; (3) informed the
    appellant of his rights to file a pro se response,2 review the record preparatory to filing
    that response, and seek discretionary review if the Court concludes that the appeal is
    frivolous; and (4) provided the appellant with a form motion for pro se access to the
    appellate record, lacking only the appellant’s signature and the date and including the
    mailing address for the court of appeals, with instructions to file the motion within ten
    days. 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. More than an adequate time
    has passed, and appellant has not filed a pro se motion for access to the appellate record
    or a motion of extension of time to do so. No pro se response has been filed.
    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). We have reviewed the entire record and counsel’s brief, and we 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
    2 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.)).
    3
    of Appellate Procedure 47.1.”); 
    Stafford, 813 S.W.2d at 509
    . We accordingly affirm the
    judgment of the trial court.
    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
    ; 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.) (“[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
    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).
    NORA L. LONGORIA
    Justice
    Do not publish.
    TEX. R. APP. P. 47.2(b).
    Delivered and filed the
    30th day of July, 2015.
    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 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 that was overruled by this Court. See TEX. R. APP. P. 68.2. Effective September
    1, 2011, any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals.
    See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of
    Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4.
    4