James Kyle Graham v. State ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00184-CR
JAMES KYLE GRAHAM,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 13-03696-CRF-85
MEMORANDUM OPINION
A jury convicted Appellant James Kyle Graham of aggravated robbery and
assessed his punishment at seventy years’ imprisonment. See TEX. PENAL CODE ANN. §
29.03 (West 2011). This appeal ensued. We affirm.
Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d
493 (1967), appellant’s court-appointed appellate counsel filed a brief and 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. 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), appellant’s counsel has carefully discussed why, under controlling
authority, there is no reversible error in the trial court’s judgment. Counsel has
informed this Court that he has: (1) examined the record and found no arguable
grounds to advance on appeal; (2) served a copy of the brief and counsel’s motion to
withdraw on appellant; and (3) informed appellant of his right to review the record and
to file a pro se response.1 See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; Stafford, 813
S.W.2d at 510 n.3; see also Schulman, 252 S.W.3d at 409 n.23. More than an adequate
period of time has passed, and appellant has not filed a pro se response.2 See Schulman,
252 S.W.3d at 409.
1 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.’” Schulman, 252 S.W.3d at 409 n.23 (quoting Wilson v. State, 955
S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)).
2Nowhere in the record or in the documents received by the Court does appellant suggest that he
wants or sought the record but was unable to obtain it. See Kelly v. State, 436 S.W.3d 313, 321-22 (Tex.
Crim. App. 2014).
Graham v. State Page 2
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, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988). We have reviewed the entire record
and counsel’s brief and 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 of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d
at 509. Accordingly, the judgment of the trial court is affirmed.
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, 87 S.Ct. at
1400; see also Schulman, 252 S.W.3d at 408 n.17 (quoting Jeffery v. State, 903 S.W.2d 776,
779-80 (Tex. App.—Dallas 1995, no pet.) (“If 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.”)). 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
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 must file a pro se petition for discretionary review. Any petition for discretionary
review must be filed within thirty days from the date of this opinion or the last timely motion for
rehearing or timely motion for en banc reconsideration was overruled by this Court. See TEX. R. APP. P.
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Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App.
2006).
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed March 19, 2015
Do not publish
[CRPM]
68.2. Any petition and all copies of the petition for discretionary review must be filed with the Clerk of
the Court of Criminal Appeals. See id. at R. 68.3. Any petition for discretionary review should comply
with the requirements of rule 68.4 of the Texas Rules of Appellate Procedure. See id. at R. 68.4; see also
Schulman, 252 S.W.3d at 409 n.22.
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