Q'Andrew Lynn Shelton v. State ( 2016 )

NO. 12-15-00002-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
Q’ANDREW LYNN SHELTON, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Q’Andrew Lynn Shelton appeals his conviction for possession of a controlled substance
in a drug free zone. Appellant’s counsel filed a brief in compliance with Anders v. California,
386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and Gainous v. State, 436 S.W.2d 137
(Tex. Crim. App. 1969). Appellant filed a pro se response. We affirm.
BACKGROUND
Appellant was charged by indictment with possession of a controlled substance in a drug
free zone and pleaded “not guilty.” The jury found Appellant “guilty” as charged, and the matter
proceeded to a bench trial on punishment. Appellant pleaded “true” to two felony enhancement
paragraphs, and the trial court assessed Appellant’s punishment at imprisonment for fifty years.
This appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant’s counsel filed a brief in compliance with Anders v. California and Gainous v.
State. Appellant’s counsel relates that he has reviewed the record and concluded that it contains
no jurisdictional defects and no reversible error to present for our review. In compliance with
High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978), Appellant’s brief
contains a professional evaluation of the record demonstrating why there are no arguable
grounds to be advanced.
Appellant contends in his pro se response and supplemental pro se response that he is
entitled to an acquittal or a new trial because (1) the police conducted an illegal search, (2) his
trial counsel’s assistance was ineffective, (3) the trial court erred by admitting irrelevant
evidence, and (4) the evidence is insufficient to support the jury’s drug free zone finding.
When faced with an Anders brief and a pro se response by an appellant, an appellate
court can either (1) determine that the appeal is wholly frivolous and issue an opinion explaining
that it has reviewed the record and finds no reversible error or (2) determine that arguable
grounds for appeal exist and remand the cause to the trial court so that new counsel may be
appointed to brief the issues. Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
CONCLUSION
After conducting an independent examination of the record, we find no reversible error
and conclude that the appeal is wholly frivolous. Accordingly, we affirm the judgment of the
trial court.
As required by Anders and Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.
1991), Appellant’s counsel has moved for leave to withdraw. See also In re Schulman, 252
S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for
consideration with the merits and now grant counsel’s motion for leave to withdraw.
Appellant’s counsel has a duty to, within five days of the date of this opinion, send a
copy of the opinion and judgment to Appellant and advise him of his right to file a petition for
discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35.
Should Appellant wish to seek review of these cases by the Texas Court of Criminal Appeals, he
must either retain an attorney to file a petition for discretionary review on his behalf or he 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 court’s judgment or the date the last timely motion for
rehearing was overruled by this court. See TEX. R. APP. P. 68.2(a). Any petition for
discretionary review must be filed with the Texas Court of Criminal Appeals. See TEX. R. APP.
P. 68.3(a). Any petition for discretionary review should comply with the requirements of Rule
68.4 of the Texas Rules of Appellate Procedure. See In re Schulman, 252 S.W.3d at 408 n.22.
2
Opinion delivered July 29, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JULY 29, 2016
NO. 12-15-00002-CR
Q’ANDREW LYNN SHELTON,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0724-14)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.