Douglas Shane Marek v. State ( 2014 )

NUMBERS 13-14-00101-CR & 13-14-00102-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DOUGLAS SHANE MAREK, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Calhoun County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion by Justice Benavides
On January 16, 2014, appellant Douglas Shane Marek pleaded guilty to criminal
mischief, a state jail felony, see TEX. PEN. CODE ANN. § 28.03 (West, Westlaw 2013
through 3d C.S.), and was sentenced to two years in the Texas Department of Criminal
Justice State Jail Division.1 See id. § 12.35 (West, Westlaw 2013 through 3d C.S.).
That same day, Marek pleaded no contest to the offense of evading arrest with a prior
conviction, another state jail felony, see id. § 38.04 (West, Westlaw 2013 through 3d
C.S.), and was sentenced to another two years in the TDCJ State Jail Division. 2 See id.
§ 12.35. The trial court ordered the sentences to run concurrently.
Marek appealed his convictions.3 Appellant’s court-appointed counsel has filed
an Anders brief for each appeal. See Anders v. California, 386 U.S. 738, 744 (1967).
We affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
has filed a brief and a 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. See id.
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).
1 The cause number for this offense at the Nueces County trial court level was 13-CR-1917.
2 The cause number for this offense at the Nueces County trial court level was 13-CR-3955.
3 Even though he pleaded guilty, the trial court certified Marek’s right to appeal in both causes of
action.
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In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978) and Kelly v. State, PD-0702-13, 2014 WL 2865901, at *3 (Tex. Crim. App.
June 25, 2014), appellant’s counsel carefully discussed why, under controlling authority,
there is no reversible error in the trial court's judgment. Counsel has informed this
Court, in writing, that counsel has: (1) notified the appellant that counsel has filed an
Anders brief and a motion to withdraw; (2) provided the appellant with copies of both
pleadings; (3) informed the appellant of appellant’s rights to file a pro se response,4
review the record preparatory to filing that response, and seek discretionary review if the
court of appeals concludes that the appeal is frivolous; and (4) provided appellant with a
form motion for pro se access to the appellate record, lacking only the appellant’s
signature and the date and including the mailing address for the court of appeals, with
instructions to file the motion within ten days. See Anders, 386 U.S. at 744; Kelly, 2014
WL 2865901, at *3, Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252
S.W.3d at 409 n.23.
In this case, appellant filed neither a timely motion seeking pro se access to the
appellate record nor a motion for extension of time to do so. No pro se brief was filed.
II. INDEPENDENT REVIEW
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 (1988). A court of appeals has two options when an Anders brief and a
subsequent pro se response are filed. After reviewing the entire record, it may: (1)
4 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.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App.
2008) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
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determine that the appeal is wholly frivolous and issue an opinion explaining that it finds
no reversible error; or (2) determine that there are arguable grounds for appeal and
remand the case to the trial court for appointment of new appellate counsel. Bledsoe v.
State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). If the court finds arguable
grounds for appeal, it may not review those grounds until after new counsel has briefed
those issues on appeal. Id.
We have reviewed the entire record and counsel’s brief, and we have found
nothing that would arguably support an appeal. See id. at 827–28 (“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. There is no reversible error in the record. Accordingly, the judgment of the trial
court is affirmed.
III. MOTION TO WITHDRAW
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; see also
In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80
(Tex. App.—Dallas 1995, no pet.) (“[I]f 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.”) (citations omitted)). 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
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advise him of his right to file a petition for discretionary review.5 See TEX. R. APP. P.
48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d
670, 673 (Tex. Crim. App. 2006).
__________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
7th day of August, 2014.
5 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 file a pro se petition for discretionary review. Any petition for discretionary review
must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or
timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2.
Effective September 1, 2011, any petition for discretionary review must be filed with the clerk of the Court
of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with
the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4.
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