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Nicholas Wade v. the State of Texas ( 2024 )


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  •                          NUMBER 13-23-00407-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI – EDINBURG
    NICHOLAS WADE,                                                            Appellant,
    v.
    THE STATE OF TEXAS,                                                        Appellee.
    ON APPEAL FROM THE 94TH DISTRICT COURT
    OF NUECES COUNTY, TEXAS
    MEMORANDUM OPINION
    Before Chief Justice Contreras and Justices Longoria and Peña
    Memorandum Opinion by Chief Justice Contreras
    Appellant Nicholas Wade pleaded guilty to two counts of aggravated assault with
    a deadly weapon and one count of burglary of a habitation while committing or attempting
    to commit a theft, both second-degree felonies. See TEX. PENAL CODE ANN.
    §§ 22.02(a)(2), 30.02(c)(2). 1 The trial court placed appellant on ten years’ deferred-
    adjudication community supervision. The State later filed a motion to revoke appellant’s
    community supervision. After a hearing on the State’s motion to revoke, the trial court
    found that appellant violated the terms of his community supervision and adjudicated
    appellant guilty of the offenses. The trial court sentenced appellant to fourteen 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.
    1 The indictment alleged that Wade committed burglary of a habitation by intentionally or knowingly
    entering a habitation, without the effective consent of the owner, and attempting to commit or committing
    the felony offense of aggravated robbery or aggravated assault. This offense would be a first-degree felony.
    See TEX. PENAL CODE ANN. § 30.02(d)(2). However, in his plea paperwork, Wade stipulated that he entered
    a habitation without the effective consent of the owner and committed or attempted to commit a theft; this
    is a second-degree felony. See id. § 30.02(c)(2). The order of deferred adjudication lists first-degree felony
    burglary as the charged offense, but the judgment of conviction states that Wade was convicted of three
    second-degree felony counts.
    2
    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
    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 a pro se response, to review the record prior to filing that response,
    and to seek discretionary review if we conclude that the appeal is frivolous; and
    (4) provided appellant with a form motion for pro se access to the appellate record that
    only requires appellant’s signature and date with instructions to file the motion within ten
    days. 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 filed neither a timely motion
    seeking pro se access to the appellate record nor a motion for extension of time to do so.
    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
    3
    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
    discretionary review. 2 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
    23rd day of May, 2024.
    2 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 must be filed with the Clerk of the Texas Court of Criminal Appeals. See 
    id.
     R. 68.3.
    Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate
    Procedure 68.4. See 
    id.
     R. 68.4.
    4
    

Document Info

Docket Number: 13-23-00407-CR

Filed Date: 5/23/2024

Precedential Status: Precedential

Modified Date: 5/25/2024