Pullins, Timothy Dewayne ( 2015 )

No. 6*(&/5 ORIGINAL
IN THE COURT OF CRIMINAL APPEALS
TIMOTHY DEWAYNE PULLINS
RECEIVED..
Petitioner/ Pro-Se
COURT OF GRIB'AL APPEALS
JUL 30 2015
THE STATE OF TEXAS
Abe? Ac^ysi (t :»«-?•>
Respondent
PRO-SE PETITION FOR DISCRETIONARY REVIEW
On Petition For Discretionary Review from the Twelfth Judicial
Court Of Appeals District Of Texas in Appeal No. 12-13-00330-
CR. affriming the judgement of the 7th Judicial District Court
of Smith County/ Texas in cause No. 007- 0509-13/ the Honorable
Judqe Kerry L. Russell/ presiding.
FILED IN
COURT OF CRIMINAL APPEALS Timothy Dewayne Pullins
Petitioner/ Pro-Se
JUL SO 2315 Coffield Unit-TDCJ-CID
2661 F.M. 2054
Tennessee Colony/ Tx.
Abel Acosta, Clerk
75884
Non- Capital Case — Oral Arguments Reserved
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No.
IN THE COURT OF CRIMINAL APPEALS
TIMOTHY DEWAYNE PULLINS
Petitioner/ pro-se
THE STATE OF TEXAS
Respondent
TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:
Now Comes, TIMOTHY DEWAYNE PULLINS/ pro-se, hereafter "Petitioner"
pursuant to RULE 66.1 of the TEXAS RULES OF APPELLATE PROCEDURE/
and respectfully petitions this Honorable Court to exercise
it's discretion to review the opinion and decision rendered
by the Twelfth Judicial District Court Of Appeals in appeal
No. 12-13-00330 - CR/ affirming the judgement of the 7th Judicial
District Court of Smith County/ Texas, in cause No. 007-0509-13.
Hereinsupport Petitioner will respectfully show:
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TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS iii
INDEX OF AUTHORITIES iv,
STATEMENTS REGARDING ORAL ARGUMENTS 1
STATEMENT OF THE CASE 1
STATEMENT OF PROCEDURAL HISTORY .... 2
GROUNDS FOR REVIEW:
1. WHETHER THE COURT OF APPEALS IN THE INTEREST OF
JUSTICE SHOULD HAVE EXERCISED IT'S DISCRETION,
CONSIDERED APPELLANT'S PRO-SE ARGUMENTS AND AL
LOWED APPEAL WITH ATTORNEY AFTER APPEAL COUNSEL
FILED ANDERS BRIEF?
2. WHETHER THE COURT OF APPEALS WAS CORRECT IN CON
CLUDING THE EDIDENCE WAS LEGALLY SUFFICIENT TO
ESTABLISH APPELLANT COMMITTED AGGRAVATED ROBBERY
AS ALLEGED BY THE INDICTMENT?
3. WHETHER THE COURT OF APPEALS WAS CORRECT IN CON
CLUDING THAT APPELLANT"S FAILURE TO OBJECT TO NON-
CONTEXTUAL EXTRNEOUS OFFENSE EVIDENCE WAS NOT
PROPERLY PRESERVED FOR APPEAL?
4. WHETHER THE COURT OF APPEALS WAS CORRECT IN CON-
THAT APPELLANT RECEIVED EFFECTIVE ASSISTANCE OF
COUNSEL AT TRIAL?
ARGUMENTS . .
PRAYER
CERTIFICATE OF MAILING
CERTIFICATE OF SERVICE
APPENDIX:
A. Twelfth Court Of Appeals Opinion.
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INDEX OF AUTHORITIES
CASES PAGES
ALBRECHT V. STATE,
48&S.W.2d 97 (Tex .Crim .App. 1972) 6
BLEDSOE V- STATE,
178 S.W.3d 824 (Tex.Crim.App. 2005) 3
BONE V. STATE,
77 S.W.3d 828 (Tex.Crim.App. 2002) 7
DRICHOS V. STATE,
152 S.W.3d 630 (Tex.App. Texarkana 2004) 4
EX PARTE GARDNER,
959 S.W.2d 189 (Tex.Crim.App. 1989) 4,8
GOODSPEED V. STATE,
187 S.W.3d 390 (Tex.CRIM-APP. 2005) 7
GREEN V- STATE,
137 S.W.3d 356 (Tex-App.Austin 2004) 4,5,8
HIGH V. STATE,
573 S.W.2d 807 (Tex.Crim.App. 1978) 2
MCFARLAND V. STATE,
845 S.W.2d 824 (Tex.Crim.App. 1982) 6
MOORE V. STATE,
694 S.W.2d 528 (Tex.Crim. App. 195) 7
RANEY V. STATE,
958 S.W.2d 867 (Tex. App. - Waco 1997) 7
RYLANDER V. STATE,
101 S.W.3d 107 (Tex.Crim App. 2003) 6
SCHEANETTE V. STATE,
813 S.W.2d 503 (Tex.Crim.App. 1991) 3,5
STEPHENSON V. STATE,
255 S.W.3d 652 (Tex.Crim.App Ft. Worth 2008) 6
WADE V. STATE,
814 S.W.2d 763 (Tex.App.-Waco 1991) 6
WILLIAMS V. STATE,
273 S.W.3d 200 (Tex.Crim.App. 2008) 5
FEDERAL
ANDERS V . CALIFORNIA,
386 U.S. 738, 87 S. Ct. 1396, L.ED.2d, 403 1967). 2
MARTIN V. U.S.,
129 S.CT. 211 (2000) 4
STRICKLAND V. WASHINGTON,
466 U.S. 668, 105 S. Ct. 1965 (1984) 6,7,8
STATUTES RULES AND CODES
TEXAS RULES OF APPELLATE PROC., RULE 66.1 ........ - i -
TEXAS RULES OF APPELLATE PROC., RULE 66.3(a) 2,4,5,7,8
TEXAS RULES OF APPELLATE PROC., RULE 66.3(b) 7
TEXAS RULES OF APPELLATE PROC, RULE 66.3(c) 4,5,7,8
TEXAS PENAL CODE § 32.31 6
TEXAS RULES OF EVIDENCE 404(b) .. •. 6
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I.
STATEMENT REGARDING ORAL ARGUMENTS
Petitioner believes that oral argument is only neccessary
if the Court deems them to be neccessary. Should the Court desire
oral argument/ Petitioner requests appointment of counsel and
hereby reserves oral argument for counsel.
II-
STATEMENT OF THE CASE
On Sept. 30, 2013, Petitioner was convicted in the 7th Judicial
District Court of Smith County/ Texas of the offense of Aggravated
Robbery, in cause No. oo7-0509-13, the Honorable Judge Kerry
L. Russell, Judge presiding.
After a bench trial, the court found Petitioner guilty and sentenced
him to (30) thirty years of imprisonment, in the Texas Department
of Criminal justice-Institutional Division. Petitioner did not
file a Motion Requesting a New Trial. On Oct. 17, 2013, Petitioner
timely gave oral and written notice of appeal. This Appeal Followed.
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III.
STATEMENT OF PROCEDURAL HISTORY
Appeal was to the Twelfth Court of Appeals. Appellant's
counsel filed a brief in compliance with Anders v. California
and Gainous v. State. Appellant's counsel states that he has
diliqently reviewed the appellant record and is of the opinion
that the record reflected no reversible error and there is no
error upon which appeal can be predicated; submit.tedon May 12/2014.
He 4B further relates that he is well acquainted with the
facts in this case Anders, Gainous, and High v. State, 573 S.W.2d
807 (Tex.Crim.App. [Panel Op] 1978)? Anders v. California, 386 U.S.
738, 87 S. Ct. 1396, 18 L.Ed2d 493 (1967).
Petitioner filed a motion to quash counsel's Ander's brief
along with a pro-se brief, on his behalf, on May, 20 2014. On
May 6, 2015, petitioner's appeal was affirmed. Petitioner was
then qranted an extension of time/ or until Auq. 4, 2015/ to
file the instant pro-se petition requesting a discretionary
review.
IV.
GROUNDS FOR REVIEW
1. WHETHER THE COURT OF APPEALS IN THE INTEREST OF JUSTICE SHOULD
HAVE, EXERCISED IT'S DISCRETION, CONSIDERED APPELLANT'S PRO-SE
ARGUMENTS^ AND ALLOWED APPEAL WITH ATTORNERY AFTER APPEAL COUNSEL
FILED ANDER'S BRIEF?
2. WHETHER THE COURT OF APPEALS WAS CORRECT IN CONCLUDING THE
EVIDENCE WAS LEGALLY SUFFICIENT TO ESTABLISH PETITIONER COMMIT
TED AGGRAVATED ROBBERY AS ALLEGED BY THE INDICTMENT?
3. WHETHER THE ^OURT OF APPEALS WAS CORRECT IN CONCLUDING THAT
APPELLANT'S FAILURE TO OBJECT TO NON-CONTEXTUAL EXTRANEOUS OFFENSE
EVIDENCE WAS NOT PROPERLY PRESERVED FOR APPEAL?
4. WHETHER THE COURT OF APPEALS WAS CORRECT IN CONCLUDING THAT
APPELLANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL?
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V .
ARGUMENTS
1. GROUND ONE:
WHETHER THE COURT OF APPEALS IN THE INTEREST OF JUSTICE SHOULD
HAVE EXERCISED IT'S DISCRETION, CONSIDERED APPELLANT'S PRO-SE
ARGUMENTS AND ALLOWED APPEAL WITH ATTORNEY AFTER APPEAL COUNSEL
FILED ANDERS BRIEF?
The Court of Criminal Appeals has jurisdicition to qrant
this request for a petition for discretionary review under the
provisions of TEXAS RULES OF APPEALLATE PROCEDURE, RULE 66.3:
(a) because the twelfth Court of Appeals in the instant case
has rendered a decision "not to consider Appellant's pro-se
brief arquments after Attorney filed Anders Brief."
In the instant case after his appeal attorney had filed an
Anders brief, Appellant fled a pro-se brief without the assist
ance of an attorney contendinq there were meritorious claims
sufficient to be filed on Direct Appeal. He filed the followinq
claims in Pro-Se brief: (1) The evidence is insufficient to
suppoctf- a findinq of quilt, (2) The trial court improperly admitted
extraneous offense evidence, (3) he received ineffective assistance
of counsel (4) the trial court had an improper judicial bias
against him.
The Twelfth Court of appeals declined to consider appellant's
pro-se arquments, concludinq that they reviewed the record for re
versible error and have found none. See Bledsoe v. State, 178 S.W.
3d 824, 826-27 (Tex.Crim.App. 2005). See(Opinion pq. 2)
In Stafford v. State, 813 S.W.2d 824, the First Court of
Appeals was faced with a similiar situation in reqards to Anders
brief beinq filed by Appeal attorney and appellant fil«inq pro&se
brief. The First Court of Appeals adhered to Strafford's pro
se brief and appointed Appeal counsel to assist Appellant, never
theless exercisinq discretion and in the intrest of justice,
the First court of Appeel& considered Stafford's pro-se arqument,
abated appeal and remanded case to trial court with orders to
appoint other counsel to present those qrounds and any other
qrounds that miqht support appeal. Stafford, Id. pq 504.
The different decisions reached by the First Court of Appeals
and Twelfth Court of Appeals qives merit that Petitioner's Pro-Se
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Brief possibly had significance. The Twelfth Court of Appeals
discretionary decision not to consider a pro-se arqument is
not withou eqreqious and reciprocal consequences that the appellant
alone must bear.
Initially, there is clearly established and strictly enforced
axion "that arquments that are available for presentation on
direct appeal should be presented and a failure to do so consti
tutes waiver or procedural default. Martin v. U.S., 129 S.Ct 211
(2000); Drichos v. State, 152 S.W.3d 360(Tex.App.-Texarkana 2004);
Ex parte Garner, 959 S.W.2d, 189, 199 (Tex.Crim.App. 1989):
Because there is actual S&MSffnwMWWiiBmp among the state' s 'inter
mediate courts of appeals regardinq their individual decisions
of whether to consider pro-se arquements after Anders^ brief
the Court of criminal Appeals should qrant discretionary review
in the instant case based on Tx. Rules of Appellate Proe. -j 66.3
(a)(c) (Reasons For Grantinq REVIEW). j
And Appoint Appeal counsel To Assist Petitioner. I
2. GROUND TWO: j
WHETHER THE COURT OF APPEALS WAS CORRECT IN CONCLUDING THE
EVIDENCE WAS LEGALLY SUFFICIENT TO ESTABLISH APPELLANT COMMIT
TED AGGRAVATED ROBBERY AS ALLEGED BY THE INDICTMENT?
The Court of criminal appeals has jurisdiction to qrant this:
request for a Petition For Discretionary rview under the provisions
i
of TEXAS RULES OF APPELLATE PROCEDURE, RULE 66.3(a), because the
Twelfth Court of appeals in the instant case has rendered a
decision "not to consider pro-se arquement challenqinq leqally
sufficient of the evidence conflicts with the sixth court of
Appeals decision on an similar decision. See Green v. State, 137
S.W.3d 356(Tex.APP.-Austin 2004). j
In the instant case after his attorney had an appeal brief
appellant filed a pro-se brief arquinq that the evidence was
leqally insufficient to prove that he was criminally responsible
for aqqravated robbery. The Twelfth Court of Appeals declined
to consider appellant's pro-se arqument concludinq that "after
appellant's attorney filed a brief, appellant had no riqht to
hybrid representation essentially citing/ Scheanette v. State, 144
S.W.3d 503, 505 (Tex.Crim.App. 2004). • • i
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In Green v. State, ID., the Sixth Court of appeals was faced
with a similar situation. after qreen's attorney had filed a
brief qreen filed a pro-se brief challenqinq the "legally suffi
ciency of the evidence."
While the Sixth Court of Appeals noted that Green did not
have the riqht to present his own issues, neverthelejS in the
interest of justice, the Sixth Court of Appeals considered Green's
pro-se arqument.
The different decisions reached by the Sixth anf twelfth
Court of Appeals reflects the inconsistency in the state's inter
mediate courts of appeals in reqards to Whether to consider
pro-se arquments on appeal in the instance where the appellant's
attorney has alread filed a brief and a layman of the law is
forced to file a Pro-se brief without the assistnce of counsel.
In this case, the appropriate remedy would be to consider the
Arquments of Pro-se Litiqant or at least provide Appellant with
Counsel to file Meritorious claims on Appeal because it's quite
possible another lawyer could have found other Grounds on which
to file an Appeal. Stafford v. State, 813 S.W.2d 503, 504(Tex.
Crim.App. 1991).
The State's intermediate court of appeals enjoy an unfettered
discretion to either adhere to, or iqnore arbitrarily on a case
by case basis. See e.q. Pullins v. State, No. 12-13-00330
CR (Tex.App.- Tyler [12th Dist.] May 6, 2015); Green v. State,
137 S.W.3d 356 re'h overruled (Tex.App - Austin 2004). The discre
tion to either adhere to, or iqnore pro-se arquments is the
cause of conflictinq decisions reached by both the sixth Court
of Appeals in Green and the Twelfth Court of Appeals in the
instant case, in reqards to laqal sufficiency of the evidence.
TRAP 66.3 (a),66.3(c)(Reasons For qrantinq Review).
3. GROUND THREE:
WHETHER THE COURT OF APPEALS WAS CORRECT IN CONCLUDING THAT
APPELLANT'S FAILURE TO OBJECT TO NON-CONTEXTUAL EXTRANEOUS
OFFENSE EVIDENCE WAS NOT PROPERLY PRESERVED FOR APPEAL?
The Court of appeals has rendered an opinion in conflict
with the rationale of this court in Williams v. State, 273 S.W.3d
200, 223 (Tex.Crim.App. 2008) TEXAS RULES OF APPELLATE PROCEDURE
66.3(c).
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Appellant asserts that non-contextual extraneous offense
TRE 404 (b) evidnce was improperly admitted and considered
during case-in-chief before the issue of identity was raised
by the defense. (VIII RR 29) Appellant had already plead guilty
to having used victim's credit cards previously, and as such,
is a separate offense. Tex.Pen.Code §32.31 (Viii RR 21). It is
axiomatic that extraneous offenses are inadmissible as proof
of the defendant's guilt in the crime for which he is on trial/
except for certain exceptions. IneAlberchtSVatState, 486 S.W.2d
97 (Tex.Crim:App'. 1972 ) [The] Court noted one such exception
is where the extraneous offense shows the context in which the
criminal act occured, ie. the "res gestae" of the offense. The
state's evidence was circumstancial regarding identity/ the
prosecution strongly injected petitioner's previous conviction
of credit card abuse/ and the aggravated robbery (VIII RR 79).
But the credit card abuse was a separate offense distinctively
different that the offense at hand/ being aggravated robbery.
The court of appeals agreed with the assumption that because
appellant's counsel did not object at any time during trial
to the admission of the evidence/ (non-contextual extraneous
offenses) that his piwrtt on Pro-Se Brief regarding extraneous
offense/ has not been properly preserved for appeal because
trial counsel failed to object. (See pg. 11 -State's reply to
Appellant Brief). The record is silent why he didn't object
after filing a Motion In Limine (1 CR 22) See Stephenson v. State,
255 S.W.2d 652 (Tex.App.-Fort Worth 2008); Rylander V. State,
101 S.W.3d 107 (Tex.Crim.App. 2003).
A violation of Motion In Limine, by itself, is not a basis
(appellant) ,
for^omplaint. See Wade v. State, 814 S.W.2d 763, 764 (Tex.App.-
Waco 1991/ No pet.). But a failure to get a ruling in pre-trial
on the Motion and failure to "OBJECT", does give rise to ineffec
tive assistance of counsel. Strickland v. Washington, 466 U.S.
668, 105 S.Ct 1965, 85 L. Ed... 2d 344 (1984) . It is not ineffec
tive assistance to fail to object to admissible evidence. McFar-
land v. State, 845 S.W.2d 824, 826 (Tex.crim.App.1982) . But
because appellant does argue that it was not admissible
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evidence, the fact is that ineffective assistance is evident.
Raney v.State, 958 S.W.2d 867 (Tex.App.-Waco 1997).
The Court of Criminal Appeals should grant discretionary
review, because reasonable jurist could debate whether and agree
that the Twelfth court of Appeals should have considered Appellant's
Pro-Se Arguments, because appellant's claims had merit, and were not
wholly frivolus. TRAP 66.3(a)(b)(c).
4. GROUND FOUR
WHETHER THE COURT OF APPEALS WAS CORRECT IN CONCLUDING THAT
APPELLANT RECEIVED EFFECTIVE ASSISTANCE AT TRIAL?
The Court of Criminal Appeals jas jurisdiction to grant
this request for a petition for discretionary review under the
provisions of TEXAS RULES OF APPELLATE PROC. RULKE 66.3 (a)(c),
because the Twelfth Court of Appeals in the instant case has
rendered a decision not to consider pro-se argument, where Peti
tioner has asserted trial counsel failed to provide him with
Constituional Mandated effective assistance of counsel. In texas,
in a criminal case, the defendant is entitled to reasonably
effective assistance of counsel as set forth in the standard
under Strickland v. Washington, 466 U.S. 668 (1984). An Appellant
bringing a claim in ineffective assitance" must demonstrate
both that: (Jjfu his . counsel's performance was deficient; and
(2) he was harmed and prejudiced. And but for counsel's unprofes
sional errors, the result of the' proceeding would have been
different. Stricklan, ID. at 694, 104 S. Ct. 2052.
Petitioner realizes that on direct appeal some claims of
ineffective assistance of counsel are proBblematic, where the
record fails to provide an adequate record/ an as such/ are
better made in Habeas review/ where there has been some oppor
tunity for the record to have been developed regarding trial
counsel's reason's for his actions. See Bone v. State, 77 S.W.3d
828, 836 (Tex.Crim.App. 2002); Goodspeed v. State, 187 S.W.3d 390
(Tex.Crim.App. 2005).
On Appeal, the Appellant carries the burden of proving ineffect
ive assistance by a preponderance of the evidence. See Moore v.
State, 694 S.W.2d 528, 531 (Tex.Crim.App 1995). Nevertheless,
upon close review there are some issues that can be raised under
7 -
scrutiny of the Record. (See Appellant's pro-se brief pg. 30-43).
He States the following claims of IAC: 1) Counsel failed to
investigate case, 2) Counsel allowed excessive probable cause
testimony, 3) Failed to object, 4) Failed to utilize or obtain
favorable witnesses, and counsel failed to meet the standards
outlined under Strickland v. Washington, Id., in several areas re
sulting irreparable harm.
In light that the Court of Criminal Appeals strictly and
regularly follow the clearly established axiom "that arguments
that are available for presentation on direct appeal should
be presented/ and failure to do so constitutes waiver or pro
cedural default. Ex parte Gardner, 959 S.W.2d 189, 199 (Tex.Crim.
App. 1989). The Court of Criminal Appeals should grant discretion
ary review, because reasonable jurist could debate whether or
argee that in the interest of justice the Twelfth Court of Appeals
should have considered appellant's pro-se argument, as the Sixth
Court of Appeals did. Green v. State, 137 S.W.3d 356 (Tex. App.-
Austin 2004) ; TRAP 66.3(a)(c).
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner-Appellant prays
that the Honorable Texas Court of Criminal Appeals would grant
a Petition For Discretionary Review, and remand to the Twelfth
Court of Appeals to consider Appellant's pro-se arguments or
in +bi©a-alternative, appoint another Appeal Counsel to assist
in preparing an Appeal.
HENCE PRAYS:
RESPECTFULLY SUBMITTED
/,WMy fu/ll'^
TIMOTHY DWAYNE PULLINS
TDCJ-CID# 1891828
Coffield Unit-TDCJ-CID
2661 F.M. 2054
Tennessee Colony, Texas
Zip 75884
CERTIFICATE OF MAILING
I, TIMOTHY DEWAYNE PULLINS, #1891828, swear under penalty of
perjury that on this %*l daY of July, 2015/ I placed the forego
ing attached Pro-Se Petition For Discretionary Review, in a postage
prepaid envelope addressed to:
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Court of Criminal Appeals
Abel Acosta, Clerk
P.O. BOX 12308
Austin, Tx. 78711
And then on that same date deposited the same in the prison's
mailbox for outgoing inmate mail:
Timothy
?imothy tfewayne Pullim
CERTIFICATE OF SERVICE
Service has been accomplished by United States Mail First postage
prepaid addressed to:
1) State Prosecuting Attorney
P.O. BOX 12405
Capital Stattion
Austin, Texas 78711-2405
2) District Attorney
(Micheal West)
Smith County Courthouse
100 N. Broadway Ave.
Tyler, Tx 75702
And then deposited same in prison mailbox.
Signed on this %[ day of July, 2015. _, .
Timothy Dewayne Pullins
# 1891828
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'<•'*
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MAY 6, 2015
NO. 12-13-00330-CR
TIMOTHY DEWAYNE PULLINS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-0509-13)
THIS CAUSE came to be heard on the appellate record and brief filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that Appellant's
counsel's motion to withdraw is granted, the judgment of the court below be in all things
affirmed, and that this decision be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. andNeeley, J.
NO. 12-13-00330-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
TIMOTHYDEWA YNE PULLINS, § APPEAL FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Timothy Dewayne Pullins appeals his conviction for aggravated robbery. Appellant's
counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18
L. Ed. 2d 493 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm.
Background
In the early morning hours of January 27, 2013, the victim began walking home after a
night out at a bar in Tyler, Texas. Although she parked her vehicle at the bar, she decided to
walk home because she was intoxicated. As she walked, a vehicle approached her. A man
exited the vehicle and robbed her at gunpoint. The victim went to a nearby convenience store
and called the police. Once an officer arrived, she described the assailant as an African
American male whose lips were "lighter on the inside [and] progressively got darker toward the
outside of the lip." Approximately an hour or two after the robbery, a man later identified as
Appellant was photographed and videotaped using the victim's credit cards at a local Wahnart,
McDonald's, and a gas station. The three stores are in close proximity to each other.
In response to a local news story releasing Appellant's photo in connection with the
robbery, Appellant voluntarily called the police. He left a message with Detective Damon Swan
of the Tyler Police Department stating that he did not commit the robbery but that he was present
during its commission. When he arrived at the station, Appellant stated, in contrast to his phone
call, that he was not present during the robbery, and that he purchased the credit cards from a
third party. Confronted by some of the evidence against him, Appellant changed his version of
the events two more times. Ultimately, he admitted that he was present during the robbery and
that he knew the robbery would take place. He denied that he actually committed the robbery.
Instead, he stated that one of the other two occupants of the car, his nephew Michael Hunter,
committed the robbery. He denied knowing that Hunterwould use a gun, even though he knew
that Hunter often carried a gun. Based on this information, Detective Swan arrestedAppellant.
Appellant was indicted for the first degree felony offense of aggravated robbery.1
Appellant initially wanted to plead guilty in hopes of a satisfactory plea agreement, but
ultimately pleaded not guilty. After a bench trial, the trial court found Appellant guilty and
sentenced him to thirty years of imprisonment. This appeal followed.
Analysis Pursuant To Anders v. California
Appellant's counsel filed a brief in compliance with Anders v. California and Gainous v.
State. Appellant's counsel states that he has diligently reviewed the appellate record and is of
the opinion that the record reflects no reversible error and that there is no error upon which an
appeal can be predicated. He further relates that he is well acquainted with the facts in this case.
In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807 (Tex. Crim. App.
[Panel Op.] 1978), Appellant's brief presents a chronological summation of the procedural
history of the case and further states that Appellant's counsel is unable to raise any arguable
issues for appeal.
Appellant filed a motion to quash counsel's Anders brief, along with a pro se brief
contending that (1) the evidence is insufficient to support a finding of guilt, (2) he received
ineffective assistance of counsel, (3) the trial court improperly admitted extraneous offense
evidence, and (4) the trial court had an improper judicial bias against him. We have reviewed
the record for reversible error and have found none. See Bledsoe v. State, 178 S.W.3d 824, 826-
27 (Tex. Crim. App. 2005).
1See Tex. Penal Code Ann. § 29.03(a)(2)(West 2011).
Conclusion
As required by Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991), Appellant's
counsel has moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407 (Tex.
Crim. App. 2008) (orig. proceeding). We are in agreement with Appellant's counsel that the
appeal is wholly frivolous. Accordingly, his motion for leave to withdraw is hereby granted, and
the trial court's judgment is affirmed. See TEX. R. App. P. 43.2. Appellant's motion to quash
counsel's Anders brief is overruled.
As a result of our disposition of this case, Appellant's counsel has a duty to, within five
days of the date of this opinion, send a copy of the opinion and judgment to Appellant and advise
him of his right to file a petition for discretionary review. See TEX. R. App. P. 48.4; In re
Schulman, 252 S.W.3d at 411 n.35. Should Appellant wish to seek review of this case by the
Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for
discretionary review on his behalf or he must file a petition for discretionary review pro se. Any
petition for discretionary review must be filed within thirty days from the date of this court's
judgment or the date the last timely motion for rehearing was overruled by this court. See Tex.
R. App. P. 68.2. Any petition for discretionary review must be filed with the Texas Court of
Criminal Appeals. See Tex. R. App. P. 68.3(a). Any petition for discretionary review should
comply with the requirements of Texas Rule of Appellate Procedure 68.4. See In re Schulman,
252 S.W.3d at 408 n.22.
Opinion delivered May 6, 2015.
Panel consisted of Worthen, C.J.,Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)