Emily Danielle Matthews v. State ( 2013 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00258-CR
EMILY DANIELLE MATTHEWS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 52nd District Court
Coryell County, Texas
Trial Court No. FDWI-09-19810
MEMORANDUM OPINION
Emily Danielle Matthews pled guilty to driving while intoxicated, a third
offense. TEX. PENAL CODE ANN. § 49.09(b)(2) (West Supp. 2013). The trial court found
Matthews guilty and sentenced her to 10 years in prison. The sentence was suspended
and Matthews was placed on community supervision for four years. 1 Three years later,
a motion to revoke was filed and Matthews pled true, without the benefit of a plea
1The judgment and plea bargain reflected a five year term of community supervision but the court’s
notes indicated a four year term. The parties involved agreed that the original term of community
supervision was intended to be a four year term.
bargain, to the violations contained in the motion to revoke. After a hearing,
Matthews’s community supervision was revoked and she was sentenced to four years
in prison. She appeals.
Matthews’s appellate attorney filed an Anders brief in this appeal. See Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Matthews was informed
of her right to submit a brief or other response on her own behalf but did not submit
one.
Counsel asserts in the Anders brief that counsel has thoroughly and
conscientiously reviewed the complete reporter’s record and clerk’s record in search for
potentially meritorious issues on appeal and, after due diligence, found that no non-
frivolous issues exist. Counsel specifically discusses the sufficiency of the evidence to
support the conviction and revocation, the error in the terms of years of community
supervision stated in the judgment, and the effectiveness of trial counsel. Counsel
concludes that there are no non-frivolous issues to assert on appeal. Counsel's brief
evidences a professional evaluation of the record for error, and we conclude that
counsel performed the duties required of appointed counsel. See Anders, 386 U.S. at 744;
High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also In re Schulman, 252
S.W.3d 403, 407 (Tex. Crim. App. 2008).
In reviewing an Anders appeal, we must, "after a full examination of all the
proceedings, ... decide whether the case is wholly frivolous." See Anders, 386 U.S. at 744;
Matthews v. State Page 2
accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is
"wholly frivolous" or "without merit" when it "lacks any basis in law or fact." McCoy v.
Court of Appeals, 486 U.S. 429, 439 n. 10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988).
Arguments are frivolous when they "cannot conceivably persuade the court." Id. at 436.
An appeal is not wholly frivolous when it is based on "arguable grounds." Stafford, 813
S.W.2d at 511.
After reviewing counsel’s brief and the entire record in this appeal, we determine
the appeal to be wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim.
App. 2005). Accordingly, we affirm the trial court's judgment.
Should Matthews wish to seek further review of this case by the Texas Court of
Criminal Appeals, she 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. 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 TEX. R. APP. P. 68.3. (Tex. Crim. App. 1997, amended eff. Sept. 1, 2011).
Any petition for discretionary review should comply with the requirements of Rule 68.4
of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4. See also In re
Schulman, 252 S.W.3d at 409 n.22.
Matthews v. State Page 3
Counsel's request to withdraw from representation of Matthews is granted, and
counsel is permitted to withdraw from representing Matthews. Additionally, counsel
must send Matthews a copy of our decision, notify her of her right to file a pro se
petition for discretionary review, and send this Court a letter certifying counsel's
compliance with Texas Rule of Appellate Procedure 48.4. TEX. R. APP. P. 48.4; see also In
re Schulman, 252 S.W.3d at 409 n.22.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed December 5, 2013
Do not publish
[CR25]
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