Joseph Dwain Mason v. State ( 2013 )

NUMBER 13-13-00388-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOSEPH DWAIN MASON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the Criminal District Court 2
of Dallas County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Chief Justice Valdez
Appellant, Joseph Dwain Mason, pleaded guilty pursuant to a plea bargain
agreement with the State to the second-degree felony offense of aggravated assault
with a deadly weapon. See TEX. PENAL CODE ANN. § 22.02 (West 2011). The trial court
placed appellant on deferred adjudication probation. Subsequently, the State filed a
motion to proceed to adjudication of guilt. Appellant entered a plea of “true” to the
State’s allegations that he had violated the terms of probation. The trial court granted
the State’s motion, found appellant guilty of the charged offense, and set punishment at
ten years’ confinement. Appellant timely filed a notice of appeal. Appellant’s appellate
counsel, concluding that the appeal in this cause is frivolous, filed an Anders brief, in
which he reviewed the merits, or lack thereof, of the appeal. We affirm. 1
I. ANDERS BRIEF
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant’s appellate
counsel has filed a motion to withdraw and a brief stating that after carefully reviewing
the appellate record, he was unable to find any “point of error that can be supported by
the record” and “has reached the conclusion that there are no arguable grounds to be
raised to support an appeal of this cause and the appeal is frivolous.” 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) (AIn 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,
1
This case is before the Court on transfer from the Fifth Court of Appeals in Dallas pursuant to a
docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001
(West 2005).
2
there are no errors in the trial court’s judgment. Counsel has demonstrated that he has
complied with the requirements of Anders by (1) examining the record and finding no
arguable grounds to advance on appeal, (2) serving a copy of the brief and motion to
withdraw as counsel on appellant, and (3) informing appellant of his right to review the
record and to file a pro se response. 2 See Anders, 386 U.S. at 744; Stafford, 813
S.W.2d at 510 n.3; see also In re 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. 3
See In re Schulman, 252 S.W.3d at 409.
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). We have reviewed the entire record and counsel’s brief; however,
we have found nothing that would arguably support an appeal. See Bledsoe v. State,
178 S.W.3d 824, 826–28 (Tex. Crim. App. 2005) (ADue 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, we affirm the judgment of the trial court.
2
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.)).
3
Appellant filed a motion for extension of time to file his pro se response. The Court granted that
motion, and his brief was due on October 31, 2013. Appellant has not filed his pro se response.
3
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s attorney has asked this Court for
permission to withdraw as counsel. 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.) (AIf 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 that was carried with the case on September 13, 2013. Within five
days of the date of this Court’s opinion, counsel is ordered to send a copy of the opinion
and judgment to appellant and advise him of his right to file a petition for discretionary
review. 4 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)
__________________
ROGELIO VALDEZ
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
5th day of December, 2013.
4
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. Any
petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals, id. R.
68.3, and should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure.
See id. R. 68.4.
4