Wayne Eugene Allsup v. State ( 2019 )

Opinion issued October 10, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00054-CR
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WAYNE EUGENE ALLSUP, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 22nd District Court
Hays County, Texas
Trial Court Case No. CR-16-0695
MEMORANDUM OPINION
A jury found Wayne Eugene Allsup guilty of the offense of possession of a
controlled substance, namely methamphetamine, of one gram or more but less than
four grams and sentenced him to 60 years’ imprisonment in the Texas Department
of Criminal Justice, Institutional Division. See TEX. HEALTH & SAFETY CODE
§ 481.115(c); TEX. PENAL CODE § 12.42(d). Allsup filed a pro se notice of appeal.
On appeal, Allsup’s appointed counsel 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.).
Counsel advised Allsup of his right to access the record and provided him
with a form motion for access to the record. Counsel further advised Allsup of his
right to file a pro se response to the Anders brief. Allsup requested access to the
record and filed a pro se response to counsel’s brief.
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
for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400
2
(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 John G. Jasuta must immediately send Allsup 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.
PER CURIAM
Panel consists of Justices Kelly, Hightower, and Countiss.
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).
3