Timothy Andrea Moore v. State ( 2016 )

IN THE
TENTH COURT OF APPEALS
No. 10-16-00025-CR
TIMOTHY ANDREA MOORE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2015-501-C2
MEMORANDUM OPINION
Appellant, Timothy Andrea Moore, was charged by indictment with indecency
with a child by contact. See TEX. PENAL CODE ANN. § 21.11 (West 2011). At the conclusion
of the evidence, the jury found Moore guilty of the charged offense and sentenced Moore
to forty years’ confinement in the Institutional Division of the Texas Department of
Criminal Justice with a $10,000 fine. The trial court certified Moore’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), Moore’s court-appointed appellate counsel filed a brief and a motion to
withdraw with this Court, stating that his review of the record yielded no grounds of
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, 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), Moore’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 Moore; and
(3) provided Moore’s family with a copy of the record, as instructed, and informed Moore
Moore v. State Page 2
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. Moore filed a pro se
response on August 18, 2016.2 See In re Schulman, 252 S.W.3d at 409.
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,
counsel’s brief, and Moore’s pro se response 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,
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 In his transmittal letter to Moore, appellate counsel indicated that:
Appellant refused to take the copy of the record because he was concerned other inmates
would learn of its contents. Appellant instructed counsel to send the record to Appellant’s
family at a specified address instead. Counsel will immediately send the copy of the record
to Appellant’s family as instructed by U.S. mail and will follow all further reasonable
instructions by Appellant regarding the record.
Counsel also noted that he read Moore “a portion of the trial transcript and the clerk’s record.” Based on
counsel’s statements and the fact that Moore did not complain in his pro se response about difficulty in
obtaining the record, we have fair assurance that Moore and his family have received or had an opportunity
to receive a copy of the record. See Kelly v. State, 436 S.W.3d 313, 321-22 (Tex. Crim. App. 2014).
Moore v. State Page 3
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, Moore’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
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 Moore 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).
3 No substitute counsel will be appointed. Should Moore 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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AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 31, 2016
Do not publish
[CR25]
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