Earl Wilmore v. State ( 2016 )

Opinion issued February 25, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00027-CR
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EARL WILMORE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Court Case No. 13-17241
MEMORANDUM OPINION
In accordance with a plea bargain with the State, the trial court entered an
order deferring adjudication and placing appellant, Earl Wilmore, on five years’
community supervision. The State moved to adjudicate and the trial court found
Wilmore had violated conditions of his community supervision and adjudicated
him guilty of the state jail felony offense of forgery. See TEX. PENAL CODE
ANN. § 32.21 (West 2011). The trial court imposed a sentence of confinement for
two years in the State Jail division of the Texas Department of Criminal Justice.
See TEX. PENAL CODE ANN. § 12.35(a) (West Supp. 2015). Wilmore timely filed a
notice of appeal.
Wilmore’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, 87 S. Ct.
1396 (1967).
Counsel’s brief meets the Anders requirements by presenting a professional
evaluation of the record and supplying us with references to the record and legal
authority. 386 U.S. 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 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.).
Although Wilmore received a copy of the record and was advised of his
right to file a response, he did not do so.
We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, there are no arguable grounds
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for review, and 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,
826–27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing
court determines whether arguable grounds exist by reviewing entire record). We
note that 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.
We affirm the judgment of the trial court and grant counsel’s motion to
withdraw.1 Attorney Terence Holmes 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).
PER CURIAM
Panel consists of Chief Justice Radack and Justices Massengale and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
1
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 Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App.
1997).
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