Michael Shane Clack v. State ( 2017 )

Opinion issued May 2, 2017
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00410-CR
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MICHAEL SHANE CLACK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Case No. 76950-CR
MEMORANDUM OPINION
The State indicted appellant, Michael Shane Clack, on two counts of
aggravated robbery. The jury found him guilty of both counts and assessed
punishment at 55 years’ imprisonment and a $10,000 fine.1 This sentence is within
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TEX. PENAL CODE. §§ 29.03, 29.02 (West 1994)
the applicable range.2 The trial court certified that this was not a plea-bargain case,
and that appellant had the right of appeal. See TEX. R. APP. P. 25.2(a)(2). Appellant
timely filed a notice of appeal.
Appellant’s appointed counsel on appeal has filed a motion to withdraw, along
with an Anders brief stating that the record presents no reversible error and that,
therefore, the appeal is without merit and is frivolous. See Anders v. California, 386
U.S. 738, 87 S. Ct. 1396 (1967). Counsel’s brief meets the Anders requirements by
presenting a professional evaluation of the record and supplying this Court with
references to the record and legal authority. See id. at 744, 87 S. Ct. at 1400; see
also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates
that he has thoroughly reviewed the record and that he is unable to advance any
grounds of error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at
1400; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006,
no pet.).
Appellant’s counsel has informed us that he mailed a copy of the motion to
withdraw and Anders brief to appellant and informed him of his right to file a
response and to access the record. See In re Schulman, 252 S.W.3d 403, 408 (Tex.
Crim. App. 2008). Furthermore, a copy of the appellate records has been delivered
2
See TEX. PENAL CODE ANN. § 12.32 (West 2009)
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to appellant for his review and to file a response. See Kelly v. State, 436 S.W.3d
313, 322 (Tex. Crim. App. 2014). Appellant has filed a pro se Anders response.
We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, that there are no arguable
grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S.
at 744, 87 S. Ct. at 1400 (emphasizing that 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, 826–28 (Tex. Crim. App. 2005) (reviewing court is not to address
merits of each claim raised in Anders brief or pro se response after determining there
are no arguable grounds for review); Mitchell, 193 S.W.3d at 155. An appellant may
challenge a holding that there are no arguable grounds for 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.
Accordingly, we affirm the judgment of the trial court and grant counsel’s
motion to withdraw.3 See TEX. R. APP. P. 43.2(a). Attorney Perry Stevens must
3
Appointed counsel still has a duty to inform appellant of the result of this appeal
and that he may, on his own, pursue discretionary review in the Texas Court of
Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App.
2005).
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immediately send the required notice and file a copy of that notice with the Clerk of
this Court. See TEX. R. APP. P. 6.5(c). We dismiss any other pending motions as
moot.
PER CURIAM
Panel consists of Justices Keyes, Bland, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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