Timothy Dewayne Pullins v. State ( 2015 )

NO. 12-13-00330-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
TIMOTHY DEWAYNE 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 Walmart,
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 Hunter would use a gun, even though he knew
that Hunter often carried a gun. Based on this information, Detective Swan arrested Appellant.
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).
1
See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011).
2
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)
3
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. and Neeley, J.