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John Pelko v. the State of Texas ( 2024 )


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  •                          NUMBER 13-23-00445-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI – EDINBURG
    JOHN PELKO,                                                             Appellant,
    v.
    THE STATE OF TEXAS,                                                      Appellee.
    ON APPEAL FROM THE 319TH DISTRICT COURT
    OF NUECES COUNTY, TEXAS
    MEMORANDUM OPINION
    Before Chief Justice Contreras and Justices Longoria and Peña
    Memorandum Opinion by Chief Justice Contreras
    Appellant John Pelko pleaded guilty to assault of a family member, a second-
    degree felony enhanced for punishment by a prior felony conviction. See TEX. PENAL
    CODE ANN. § 22.01(b)(2)(A). The trial court placed appellant on eight years’ deferred-
    adjudication community supervision. During a hearing on the State’s motion to revoke
    community supervision, appellant was found to have violated the terms of his probation.
    The trial court convicted appellant of the underlying offense, adjudicated him guilty of
    assault of a family member as a repeat felony offender, and sentenced him to 20 years’
    imprisonment. See TEX. CODE CRIM. PROC. ANN. art. 42A.108. Appellant’s court-appointed
    counsel has filed an Anders brief stating that there are no arguable grounds for appeal.
    See Anders v. California, 
    386 U.S. 738
    , 744 (1967). We affirm the trial court’s judgment.
    I.     ANDERS BRIEF
    Pursuant to Anders v. California, appellant’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 reversible error upon which an appeal could be predicated. See 
    id.
    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
    , 406 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“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–Edinburg 2003, no pet.))); Stafford v. State, 
    813 S.W.2d 503
    , 510
    n.3 (Tex. Crim. App. 1991).
    In compliance with High v. State, 
    573 S.W.2d 807
    , 813 (Tex. Crim. App. [Panel
    Op.] 1978) and Kelly v. State, 
    436 S.W.3d 313
    , 319–22 (Tex. Crim. App. 2014),
    appellant’s counsel carefully discussed why, under controlling authority, there is no
    reversible error in the trial court’s judgment. Appellant’s counsel also informed this Court
    2
    in writing that he: (1) notified appellant that counsel has filed an Anders brief and a motion
    to withdraw; (2) provided appellant with copies of both pleadings; (3) informed appellant
    of his rights to file pro se responses, to review the record prior to filing those responses,
    and to seek discretionary review if we conclude that the appeal is frivolous; and
    (4) provided appellant with the appellate record. See Anders, 
    386 U.S. at 744
    ; Kelly, 436
    S.W.3d at 319–20; see also In re Schulman, 252 S.W.3d at 408–09. In this case, appellant
    did not file a pro se response.
    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 counsel’s brief, and we 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, the court of appeals met the requirements of Texas Rule
    of Appellate Procedure 47.1.”); Stafford, 
    813 S.W.2d at 511
    .
    III.   MOTION TO WITHDRAW
    In accordance with Anders, appellant’s counsel has asked this Court for
    permission to withdraw as counsel. See Anders, 
    386 U.S. at 744
    ; see also In re
    Schulman, 
    252 S.W.3d at
    408 n.17. We grant counsel’s motion to withdraw. Within five
    days from the date of this Court’s opinion, counsel is ordered to send a copy of this opinion
    and this Court’s judgment to appellant and to advise him of his right to file a petition for
    3
    discretionary review. 1 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).
    IV.      CONCLUSION
    We affirm the trial court’s judgment.
    DORI CONTRERAS
    Chief Justice
    Do not publish.
    TEX. R. APP. P. 47.2(b).
    Delivered and filed on the
    9th day of May, 2024.
    1 No substitute counsel will be appointed. Should appellant 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 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 or timely motion
    for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for
    discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See
    
    id.
     R. 68.4. Any petition for discretionary review must be filed with the Clerk of the Texas Court of Criminal
    Appeals. See 
    id.
     R. 68.3.
    On April 30, 2024, appellant filed a motion for extension of time to file a petition for discretionary
    review. Appellant’s motion is premature, and this Court does not have the authority to grant it. See 
    id.
     R.
    68.2(c). As such, appellant’s motion is moot.
    4
    

Document Info

Docket Number: 13-23-00445-CR

Filed Date: 5/9/2024

Precedential Status: Precedential

Modified Date: 5/11/2024