Robyn Castle Chestnutt v. State ( 2004 )

  NUMBER 13-03-756-CR

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG   

ROBYN CASTLE CHESNUTT,                                                    Appellant,

v.

THE STATE OF TEXAS,                                                             Appellee.

On appeal from the 36th District Court of San Patricio County, Texas.

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Yañez

          On October 14, 2003, a jury convicted appellant, Robyn Chesnutt, of driving while intoxicated. The trial court sentenced him to five years of imprisonment suspended, fined him $2,500, and placed him on community supervision for seven years.

          The record contains the trial court’s certification that this case is not a plea-bargain case and the defendant has the right of appeal. See Tex. R. App. P. 25.2(a)(2).

A. Anders Brief

          Appellant’s attorney has filed a brief with this Court asserting there is no basis for appeal. See Anders v. California, 386 U.S. 738 (1967). According to the brief, counsel has reviewed the clerk’s record and reporter’s record and has concluded that appellant’s appeal is frivolous and without merit. See id. The brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal. See 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. 1978), counsel has carefully discussed why, under controlling authority, there are no errors in the trial court’s judgment. In the brief, appellant’s counsel states that he has informed appellant of his right to review the appellate record and to file a pro se brief. No such brief has been filed.

          Upon receiving a “frivolous appeal” brief, the appellate courts must conduct “a full examination of all the proceedings to decide whether the case is wholly frivolous.” Penson v. Ohio, 488 U.S. 75, 80 (1988); see Garza v. State, 126 S.W.3d 312, 313 (Tex. App.–Corpus Christi 2004, no pet.). We have carefully reviewed the appellate record and counsel’s brief. We find nothing in the record that might arguably support this appeal. We agree with appellant’s counsel that the appeal is wholly frivolous and without merit.

          The trial court’s judgment is affirmed.

B. Motion to Withdraw

          An appellate court may grant counsel’s motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511 (noting that Anders brief should be filed with request from withdrawal from case). We note that counsel has not filed a motion to withdraw in this case. If counsel wishes to file a motion to withdraw, he must file the motion no later than fifteen days from the date of this opinion.

          We order counsel to advise appellant promptly of the disposition of this case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).

                                                               LINDA REYNA YAÑEZ

                                                                           Justice

Do not publish. Tex. R. App. P. 47.2(b).

Memorandum opinion delivered and filed this the

19th day of August, 2004.