Troy Walker Neville v. State ( 2019 )

IN THE
TENTH COURT OF APPEALS
No. 10-18-00371-CR
TROY WALKER NEVILLE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 52nd District Court
Coryell County, Texas
Trial Court No. 16-23260
MEMORANDUM OPINION
Appellant, Troy Walker Neville, was charged by indictment for the offense of
possession of a controlled substance—morphine—in an amount greater than four grams
but less than 200 grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West 2017).
Appellant pleaded guilty to the charged offense, and the trial court deferred an
adjudication of guilt and placed appellant on community supervision for five years with
a $750 fine.
Thereafter, the State moved to adjudicate appellant’s guilt and revoke his
community supervision, alleging six violations of the terms and conditions of his
community supervision. At the hearing on the State’s motion to adjudicate and revoke
appellant’s community supervision, the State abandoned one of the alleged violations,
and appellant pleaded “true” to the remaining five allegations. The trial court concluded
that appellant did indeed violate five of the terms and conditions of his community
supervision, adjudicated him guilty, and sentenced him to twenty years’ incarceration in
the Institutional Division of the Texas Department of Criminal Justice. The trial court
certified appellant’s right of appeal, and this appeal followed.
I. ANDERS BRIEF
Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d
493 (1967), appellant’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 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,
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343-44 (Tex. App.—Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3
(Tex. Crim. App. 1991) (en banc).
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, there
are no reversible errors in the trial court’s judgment. Counsel has informed this Court
that he has: (1) examined the record and found no arguable grounds to advance on
appeal; (2) served a copy of the brief and counsel’s motion to withdraw on appellant; and
(3) provided appellant with a copy of the record and informed him of his right to file a
pro se response.1 See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; 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.2 See In re Schulman, 252 S.W.3d
at 409.
The Texas Court of Criminal Appeals has held that “‘the pro se response need not comply with
1
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.)).
2 In his letter to appellant, appellate counsel indicated the following:
You have the right to file a brief on you own behalf. . . . In addition, you have the right to
review the record to find what points to raise in your pro se brief. . . . To aid you in this, I
have previously sent you a copy of the record for your use. . . . You must file this brief
with the Tenth Court of Appeals, McLennan County Courthouse, 501 Washington Avenue,
Room 415, Waco, Texas 76701-1373. Since you have been provided a copy of the record by
me already, you must . . . file your pro se response to counsel’s Anders brief within the time
allotted by this Court.
Appellant has not filed a pro se response.
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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, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988). We have reviewed the entire record
and counsel’s brief and have found nothing that would arguably support an appeal. See
Bledsoe v. State, 178 S.W.3d 824, 827-28 (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.
Accordingly, we affirm the judgment of the trial court.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s attorney has asked this Court for
permission to withdraw as counsel in this case. See Anders, 386 U.S. at 744, 87 S. Ct. at
1400; 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.) (“If 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
Given the above, we have fair assurance that appellate counsel has complied with the Court of
Criminal Appeals’s decision in Kelly v. State. See 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014).
Neville v. State Page 4
motion to withdraw. Within five days of the date of this Court’s opinion, counsel is
ordered to send a copy of this opinion and this Court’s judgment to appellant and to
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).
JOHN E. NEILL
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Affirmed
Opinion delivered and filed April 24, 2019
Do not publish
[CR25]
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 must file a pro se petition for discretionary review. Any petition for discretionary
review must be filed within thirty days from the date of this opinion or the last timely motion for rehearing
or timely motion for en banc reconsideration was overruled by this Court. See TEX. R. APP. P. 68.2. Any
petition and all copies of the petition for discretionary review must be filed with the Clerk of the Court of
Criminal Appeals. See id. at 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. at R. 68.4; see also In re Schulman,
252 S.W.3d at 409 n.22.
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