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Georgia Rae Lester v. State ( 2010 )


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    NUMBER 13-10-00166-CR

     

    COURT OF APPEALS

     

    THIRTEENTH DISTRICT OF TEXAS

     

    CORPUS CHRISTI – EDINBURG

                                                                                                                                

     

    GEORGIA RAE LESTER,                                                             Appellant,

     

    v.

     

    THE STATE OF TEXAS, Appellee.

                                                                                                                                

     

    On appeal from the 258th District Court

    of Polk County, Texas.

                                                                                                                                

     

    MEMORANDUM OPINION

     

    Before Justices Yañez, Garza, and Benavides

    Memorandum Opinion by Justice Garza

     

                After a bench trial, appellant Georgia Rae Lester was convicted of sexually assaulting a child, a second-degree felony.  See Tex. Penal Code Ann. § 22.011(a)(2) (Vernon Supp. 2010).  She was sentenced to four years in the Institutional Division of the Texas Department of Criminal Justice.  The trial court certified Lester’s right to appeal, and this appeal followed.  We affirm.

    I.  Anders Brief

                Lester’s appellate counsel has filed a motion to withdraw and a brief in support thereof in which he states that he has diligently reviewed the entire record and “is of the opinion that the record reflects no reversible error and that there is no reversible error upon which appeal can be predicated.”  See Anders v. California, 386 U.S. 738 (1967).  Counsel’s brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal.  See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding); 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), counsel has carefully discussed why, under controlling authority, there are no errors in the trial court’s judgment.  Counsel has informed this Court that he has (1) examined the record and has found no arguable grounds to advance on appeal, (2) served a copy of the brief and motion to withdraw on Lester, and (3) informed Lester of her right to review the record and to file a pro se response.[1] See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3. More than an adequate time has passed, and no pro se response has been filed.

    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 record and find that the appeal is wholly frivolous and without merit.  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 it considered the issues raised in the brief and reviewed the record for reversible error but found none, the court of appeals met the requirements 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, Lester’s counsel has filed a motion to withdraw.  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.) (“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 the motion to withdraw.

                We further order that counsel must, within five days of the date of this opinion, send a copy of the opinion and judgment to Lester and advise her of her right to file a petition for discretionary review.[2]  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).

     

     

    ________________________

    DORI CONTRERAS GARZA

    Justice

     

    Do not publish.

    Tex. R. App. P. 47.2(b)

    Delivered and filed the

    2nd day of December, 2010.


    [1] 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 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] No substitute counsel will be appointed.  Should Lester wish to seek further review of this case by the Texas Court of Criminal Appeals, she 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 that was overruled by this Court.  See Tex. R. App. P. 68.2.  Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals.  See Tex. R. App. P. 68.3, 68.7.  Any petition for discretionary review must comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 68.4.