James Alan Bigon II v. the State of Texas ( 2023 )

Opinion issued March 2, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-22-00766-CR
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JAMES ALAN BIGON, II, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 277th District Court
Williamson County, Texas1
Trial Court Case No. 21-0132-K277
MEMORANDUM OPINION
1
Pursuant to its docket equalization authority, the Supreme Court of Texas
transferred this appeal to this Court. See Misc. Docket No. 22–9083 (Tex. Sept. 27,
2022); see also TEX. GOV’T CODE ANN. § 73.001 (authorizing transfer of cases);
TEX. R. APP. P. 41.3 (“In cases transferred by the Supreme Court from one court of
appeals to another, the court of appeals to which the case is transferred must decide
the case in accordance with the precedent of the transferor court . . . .”).
After appellant, James Alan Bigon, II, with an agreed punishment
recommendation from the State, pleaded guilty to the felony offense of possession
with intent to deliver a controlled substance: namely methamphetamine, weighing
more than four grams but less than 200 grams,2 the trial court deferred adjudication
of appellant’s guilt and placed him on community supervision for six years. The
State, alleging numerous violations of the conditions of appellant’s community
supervision, subsequently moved to adjudicate his guilt. After a hearing, the trial
court found numerous allegations true, found appellant guilty, and assessed his
punishment at confinement for fifteen years. Appellant timely filed a notice of
appeal.
Appellant’s appointed counsel on appeal has filed a motion to withdraw, along
with a brief stating that the record presents no reversible error and the appeal is
without merit and is frivolous. See Anders v. California, 386 U.S. 738 (1967).
Counsel’s brief meets the Anders requirements by presenting a professional
evaluation of the record and supplying the Court with references to the record and
legal authority. See id. at 744; see also High v. State, 573 S.W.2d 807, 812 (Tex.
Crim. App. 1978). Counsel indicates that she has thoroughly reviewed the record
and is unable to advance any grounds of error that warrant reversal. See Anders, 386
2
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.112(a), (d).
2
U.S. at 744; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.]
2006, no pet.).
Counsel has informed the Court that she provided appellant with a copy of the
brief and the motion to withdraw, informed appellant of his right to examine the
appellate record and file a response to counsel’s Anders brief, and provided him with
a form motion to access the appellate record.3 See Kelly v. State, 436 S.W.3d 313,
319–20 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim.
App. 2008). Appellant has not filed a response to his counsel’s Anders brief.
We have independently reviewed the entire record in the appeal, and we
conclude that no reversible error exists in the record, there are no arguable grounds
for review, and the appeals are frivolous. See Anders, 386 U.S. at 744 (emphasizing
reviewing court—and not counsel—determines, after full examination of
proceedings, whether appeal is wholly frivolous); Garner v. State, 300 S.W.3d 763,
767 (Tex. Crim. App. 2009) (reviewing court must determine whether arguable
grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim.
App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing court determines
3
This Court also notified appellant that counsel had filed an Anders brief and a
motion to withdraw and informed appellant that he had a right to examine the
appellate record and file a response to his counsel’s Anders brief. And this Court
provided appellant with a form motion to access the appellate record. See Kelly v.
State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014); In re Schulman, 252
S.W.3d 403, 408 (Tex. Crim. App. 2008).
3
whether arguable grounds exist by reviewing entire record). We note that appellant
may challenge a holding that there are no arguable grounds for an appeal by filing a
petition for discretionary review in the Texas Court of Criminal Appeals. See
Bledsoe, 178 S.W.3d at 827 & n.6.
Conclusion
We affirm the judgment of the trial court and grant appellant’s appointed
counsel’s motion to withdraw.4 Attorney Kristen Jernigan must immediately send
appellant the required notice and file a copy of the notice with the Clerk of this Court.
See TEX. R. APP. P. 6.5(c). We dismiss any pending motions as moot.
Julie Countiss
Justice
Panel consists of Chief Justice Adams and Justices Countiss and Rivas-Molloy.
Do not publish. TEX. R. APP. P. 47.2(b).
4
Appellant’s appointed counsel still has a duty to inform appellant of the result of
this appeal and that appellant may, on his own, pursue discretionary review in the
Texas Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.
Crim. App. 1997).
4