Mark Stuyvesant v. State ( 2016 )

NUMBER 13-15-00436-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MARK STUYVESANT, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 28th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Memorandum Opinion by Justice Benavides
A Nueces County jury convicted appellant Mark Stuyvesant of burglary of a
habitation, a second-degree felony. See TEX. PENAL CODE ANN. 30.02 (West, Westlaw
thorugh 2015 R.S.). On November 4, 2015, the trial court sentenced Stuyvesant to four
years’ imprisonment with the Texas Department of Criminal Justice—Institutional
Division. At the time of his conviction for burglary of a habitation, Stuyvesant was on
deferred probation for two separate cause numbers (trial court cause numbers 12-CR-
3777-A and 12-CR-3014-A).1
As a result of his burglary of a habitation conviction, the State filed two motions to
revoke Stuyvesant’s probation for cause numbers 12-377-A and 12-3014-A. At the
revocation hearing, Stuyvesant pleaded true to all of the State’s grounds for revocation,
except for the allegation that he had committed burglary of a habitation. The trial court
took judicial notice of Stuyvesant’s conviction, found the burglary allegation to be true,
and revoked Stuyvesant’s probation and adjudicated Stuyvesant’s guilt in cause number
12-CR-377-A and 12-CR-3014-A. The trial court sentenced Stuyvesant to four years’
imprisonment with all three convictions running concurrently, with credit for time served.
Stuyvesant’s court-appointed appellate counsel has filed an Anders brief. See Anders
v. California, 386 U.S. 738, 744 (1967). We affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, Stuyvesant’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
1 Stuyvesant was charged with aggravated assault causing bodily injury in trial court cause
number 12-CR-3777-A and possession of a controlled substance in cause number 12-CR-3014-A.
2
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 and Kelly v. State, Stuyvesant’s counsel carefully
discussed why, under controlling authority, there is no reversible error in the trial court’s
judgment. See High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978);
Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014). Stuyvesant’s appellate
counsel also notified this Court that he: (1) notified Stuyvesant that he has filed an Anders
brief and a motion to withdraw; (2) provided Stuyvesant with copies of both pleadings; (3)
informed Stuyvesant of his rights to file a pro se response, review the record preparatory
to filing that response,2 and seek discretionary review if we concluded that the appeal is
frivolous; (4) provided Stuyvesant with a pro se motion for access to the appellate record;
and (5) informed Stuyvesant that the pro se response, if any, should identify for the Court
those issues which he believes the Court should consider in deciding whether the case
presents any meritorious issues. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at
319–20; Stafford, 813 S.W.2d at 510, n.3; see also In re Schulman, 252 S.W.3d at 409
n.23. A reasonable amount of time has passed, and Stuyvesant has not filed a pro se
brief.
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 to
case presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (quoting Wilson v.
State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
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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)
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, Stuyvesant’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 Jeffrey v. State, 903 S.W.2d 776, 779–80
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(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 this Court’s opinion, counsel is ordered to send
a copy of this opinion and this Court’s judgment to Stuyvesant 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).
IV. CONCLUSION
We affirm the judgment of the trial court.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
29th day of December, 2016.
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 Court of Criminal Appeals, see TEX. R.
APP. P. 68.3, and should comply with the requirements of the Texas Rule of Appellate Procedure 68.4.
See TEX. R. APP. P. 68.4.
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