Donald Ray Scott, Jr. v. State

IN THE
TENTH COURT OF APPEALS
No. 10-18-00209-CR
DONALD RAY SCOTT, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2013-1448-C1
MEMORANDUM OPINION
A jury convicted Appellant Donald Ray Scott, Jr., of possession with intent to
deliver a controlled substance, namely, cocaine, in the amount of four grams or more but
less than 200 grams and assessed his punishment at sixty-five years’ imprisonment as a
habitual felon. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d); TEX. PENAL CODE
ANN. § 12.42(d). This appeal ensued. We affirm the trial court’s judgment.
Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d
493 (1967), Scott’s court-appointed appellate counsel filed a brief and 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).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]
1978), Scott’s counsel has carefully discussed why, under controlling authority, there is
no reversible error 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 Scott; and (3) informed
Scott of his right to review the record and 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 Schulman, 252 S.W.3d at 409
1Counsel has informed this Court that he has provided the appellate record to Scott. See Kelly v. State, 436
S.W.3d 313, 321-22 (Tex. Crim. App. 2014).
Scott v. State Page 2
n.23. More than an adequate period of time has passed, and Scott has not filed a pro se
response. See Schulman, 252 S.W.3d at 409.
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
and counsel’s brief 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, the court of appeals met the
requirement of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. The
judgment of the trial court is therefore affirmed.
In accordance with Anders, Scott’s attorney has asked this Court for permission to
withdraw as counsel for Scott. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; see also
Schulman, 252 S.W.3d at 408 n.17 (quoting 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.”)). 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 Scott and to advise him of his right to file a
Scott v. State Page 3
petition for discretionary review.2 See TEX. R. APP. P. 48.4; see also Schulman, 252 S.W.3d
at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Affirmed
Opinion delivered and filed May 29, 2019
Do not publish
[CRPM]
2No substitute counsel will be appointed. Should Scott 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 from the date the last timely motion for rehearing 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 TEX. R. APP. P. 68.3. Any petition
for discretionary review should comply with the requirements of rule 68.4 of the Texas Rules of Appellate
Procedure. See TEX. R. APP. P. 68.4; see also Schulman, 252 S.W.3d at 409 n.22.
Scott v. State Page 4