Christopher Lawrence Athey v. State ( 2014 )

NUMBER 13-13-00073-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CHRISTOPHER LAWRENCE ATHEY, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 54th District Court
of McLennan County, Texas.
MEMORANDUM OPINION1
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion by Chief Justice Valdez
Appellant, Christopher Lawrence Athey, was indicted for burglary of a habitation,
with intent to commit theft. See TEX. PEN. CODE ANN. § 30.02 (West, Westlaw through
2013 3d C.S). In the indictment, the State included an enhancement paragraph, alleging
that appellant had previously been convicted of a felony, to-wit: burglary of a habitation,
1 This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to
an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).
which, if true, would enhance the offense to a first degree felony. See id. § 12.42(b)
(West, Westlaw through 2013 3d C.S). Following a trial, a jury found appellant guilty of
the offense. After finding the enhancement paragraph true, the jury assessed appellant’s
punishment at forty-seven years’ imprisonment.
Concluding that there are no errors that would result in the reversal of the judgment
of the trial court, appellant’s counsel filed an Anders brief in which he reviewed the merits,
or lack thereof, of the appeal. We affirm.
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 with this Court stating that he has found
no reversible error committed by the trial court and no arguable ground 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 explained why, under controlling authority, there are
no reversible errors in the trial court’s judgment. Counsel has informed this Court that he
has complied with the requirements of Anders by (1) examining the record and applicable
law and finding no arguable grounds to advance on appeal, (2) serving a copy of the brief
and motion to withdraw as counsel on appellant, (3) informing appellant of his right to
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review the record and to file a pro se response raising any ground of error or complaint
which he may desire. 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 with this Court. 2 See In re
Schulman, 252 S.W.3d at 409 n. 23.
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, counsel’s Anders brief, the State’s
brief, and appellant’s pro se brief, and 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) (“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, we affirm.
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.) (“[I]f an attorney believes the appeal is frivolous, he must
withdraw from representing the appellant. To withdraw from representation, the
2 Appellant has filed multiple motions for extension of time to file a pro se response. Following his
last motion to date, we issued an order, on September 12, 2013, granting appellant’s motion “insofar as
appellant is ORDERED to file his pro se response to the Anders brief with this Court within twenty days of
the date of this order” and denying the motion “insofar as the Court will not allow an extension until October
10, 2013.” The order also stated, “NO FURTHER EXTENTIONS WILL BE GRANTED IN THIS MATTER.”
As noted above, appellant has still not filed a pro se response.
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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 the opinion and judgment to appellant and advise him of his right to file
a petition for discretionary review.3 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
8th day of May, 2014.
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 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. See id. 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. R. 68.4.
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