Carl Willard Colgin, Jr. v. State ( 2008 )


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  •                             NUMBER 13-06-00434-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    CARL WILLARD COLGIN, JR.,                                                   Appellant,
    v.
    THE STATE OF TEXAS,                                                        Appellee.
    On appeal from the 24th District Court
    of Goliad County, Texas.
    MEMORANDUM OPINION
    Before Justices Rodriguez, Garza, and Vela
    Memorandum Opinion by Justice Rodriguez
    This is an appeal of a conviction for indecency with a child. See TEX. PENAL CODE
    ANN. § 21.11 (Vernon 2003). Following a bench trial, appellant, Carl Willard Colgin, Jr.,
    was found guilty, and the trial court sentenced him to a mandatory life sentence in the
    Texas Department of Criminal Justice, Institutional Division. Appellant's counsel filed an
    Anders brief in which she has concluded that there are no issues which might arguably
    support an appeal. We affirm.
    I. Compliance with Anders v. California
    Appellant's court-appointed counsel filed a brief in which she has concluded that the
    appeal is wholly frivolous and without merit. See Anders v. California, 
    386 U.S. 738
    , 744
    (1967). Appellant's brief meets the requirements of Anders. See 
    id. at 744-45;
    High v.
    State, 
    573 S.W.2d 807
    , 812 (Tex. Crim. App. [Panel Op.] 1978). Counsel presented a
    professional evaluation of the record. See 
    Anders, 386 U.S. at 744
    ; Currie v. State, 
    516 S.W.2d 684
    , 684 (Tex. Crim. App. 1974); see also 
    High, 573 S.W.2d at 812
    . Counsel has
    informed the Court that she notified appellant of the following: (1) after reviewing the
    record, the appeal is without merit and wholly frivolous; (2) she is requesting to withdraw
    as counsel; and (3) appellant has the right to review the appellate record and to file a pro
    se brief. See 
    Anders, 386 U.S. at 744
    -45; see also Stafford v. State, 
    813 S.W.2d 503
    , 509
    (Tex. Crim. App. 1991) (en banc); 
    High, 573 S.W.2d at 813
    . Counsel forwarded appellant
    a copy of the Anders brief and a copy of her motion to withdraw as attorney of record. She
    has also provided appellant with the address of the District Clerk of Goliad County should
    he wish to obtain the appellate record in this case. In response to the Anders brief,
    appellant filed a pro se brief. See 
    Anders, 386 U.S. at 744
    -45; see also 
    High, 573 S.W.2d at 813
    .
    II. Discussion
    In compliance with Anders, counsel reviewed the following areas for potential error:
    jurisdiction, pre-trial matters, voir dire, opening statement, the State's case-in-chief,
    appellant's case-in-chief, objections ruled adversely to appellant, the trial court's charge,
    argument of counsel, sufficiency of the evidence, and punishment. Based on her analysis,
    2
    counsel informs this Court that she has determined, based on her review, that there are
    no apparent irregularities requiring reversal or other relief.1
    Also in compliance with Anders, counsel referred this Court to what, in her opinion,
    was the only issue which might arguably support an appeal, that being ineffective
    assistance of counsel. See 
    Anders, 386 U.S. at 744
    ; Currie v. State, 
    516 S.W.2d 684
    , 684
    (Tex. Crim. App. 1974); see also 
    High, 573 S.W.2d at 812
    .
    III. Pro Se Brief
    Appellant urges two issues in his pro se brief. He complains that his right to due
    process was violated when the State, during opening statement and direct examination of
    Detective Danny Madrigal, made references to appellant's post-arrest and post-Miranda
    warning silence and linked that silence to the implausibility of appellant's exculpatory story
    offered at trial. Appellant also asserts that his punishment was illegally enhanced because
    his deferred adjudication probation for aggravated sexual assault of a child had not been
    revoked and had not become a final conviction prior to the conviction for the instance
    indecency with a child charge. Appellant urges this Court to find error, abate this appeal,
    and remand back to the trial court to appoint new counsel to properly brief this error. The
    State filed a brief in response to appellant's pro se brief.
    IV. Independent Review
    The United States Supreme Court advised appellate courts that upon receiving a
    “frivolous appeal” brief, they must conduct “a full examination of all the proceeding[s] to
    decide whether the case is wholly frivolous.” Penson v. Ohio, 
    488 U.S. 75
    , 80 (1988); see
    Ybarra v. State, 
    93 S.W.3d 922
    , 926 (Tex. App.–Corpus Christi 2003, no pet.).
    1
    The State filed a brief in which it concurred that this appeal is without merit.
    3
    Accordingly, we have carefully reviewed the record and have considered the issues raised
    by counsel and by appellant, and we have found nothing that would arguably support an
    appeal.2 See 
    Stafford, 813 S.W.2d at 509
    . We agree with counsel that there is no basis
    for presenting any legally non-frivolous issue and conclude the appeal is wholly frivolous
    and without merit. 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 requirements of Texas Rule of Appellate Procedure 47.1.").
    III. Conclusion
    The judgment of the trial court is affirmed. Additionally, in accordance with Anders,
    appellant's counsel filed a motion requesting permission to withdraw as counsel for
    appellant. See 
    Anders, 386 U.S. at 744
    . We grant counsel's motion to withdraw, and
    order counsel to notify appellant of the disposition of this appeal and of the availability of
    discretionary review. See Ex parte Wilson, 
    956 S.W.2d 25
    , 27 (Tex. Crim. App. 1997) (en
    banc) (per curiam).
    NELDA V. RODRIGUEZ
    Justice
    Do not publish.
    TEX. R. APP. P. 47.2(b).
    2
    Although appellant’s attempt at a direct appeal has been unsuccessfu l h e i s not without a potential
    remedy. Challenges requiring development of a record to substantiate a claim, such as ineffective assistance
    of counsel, may be raised in a n a p p l i c a ti o n fo r writ of habeas corpus. See T EX. CODE CRIM. P ROC . A NN . art.
    11.07 (Vernon Supp. 2007); Cooper v. State, 
    45 S.W.3d 77
    , 82 (Tex. Cri m . A p p . 2001); Ex parte Torres, 
    943 S.W.2d 469
    , 476 (Tex. Crim. App. 1997). An application for writ of habeas corp u s relief would "provide an
    opportunity to conduct a dedicated hearing to consi d e r the facts, circumstances, and rationale behind
    counsel's actions at . . . trial." Thompson v. State, 
    9 S.W.3d 808
    , 814-15 (Tex. Crim. App. 1999).
    4
    Memorandum Opinion delivered and
    filed this 19th day of June, 2008.
    5