Alvin Claude Linton v. State

IN THE
TENTH COURT OF APPEALS
No. 10-18-00136-CR
ALVIN CLAUDE LINTON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 77th District Court
Limestone County, Texas
Trial Court No. 14172-A
MEMORANDUM OPINION
Alvin Claude Linton was convicted of possession with intent to deliver a
controlled substance in an amount over one gram and under 4 grams, enhanced. See TEX.
HEALTH & SAFETY CODE ANN. § 481.112(c) (West 2017). He was sentenced to 39 years in
prison.
Linton’s appellate attorney filed a motion to withdraw and an Anders brief in
support of the motion to withdraw, asserting that the appeal presents no issues of
arguable merit. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
Counsel advised Linton that counsel had filed the motion and brief pursuant to Anders
and provided Linton with a copy of the record, advised Linton of his right to review the
record, and advised Linton of his right to submit a response on his own behalf. Linton
submitted a response. The State replied to Linton’s response.
Counsel asserts in the Anders brief that counsel has made a thorough review of the
entire record, including voir dire, the sufficiency of the evidence, both the guilt/innocence
and punishment phases of the trial, and the punishment assessed. After the review,
counsel concludes there is no non-frivolous issue to raise in this appeal. Counsel's brief
evidences a professional evaluation of the record for error, and we conclude that counsel
performed the duties required of appointed counsel. See Anders, 386 U.S. at 744; High v.
State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also In re Schulman, 252 S.W.3d 403,
407 (Tex. Crim. App. 2008).
In his response to counsel’s Anders brief, Linton contends the evidence was
insufficient to support his conviction because his co-defendant was an accomplice
witness whose testimony was not corroborated by other evidence tending to connect
Linton to the contraband. The record does not support Linton’s contention.
Upon the filing of an Anders brief, as the reviewing appellate court, it is our duty
to independently examine the record to decide whether counsel is correct in determining
that an appeal is frivolous. See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503,
511 (Tex. Crim. App. 1991). Arguments are frivolous when they "cannot conceivably
Linton v. State Page 2
persuade the court." McCoy v. Court of Appeals, 486 U.S. 429, 436, 108 S. Ct. 1895, 100 L.
Ed. 2d 440 (1988).
Having carefully reviewed the entire record, the Anders brief, Linton’s response,
and the State’s reply, we have determined that this appeal is frivolous. See Bledsoe v. State,
178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). Accordingly, we affirm the trial court’s
Judgment of Conviction by Jury signed on April 16, 2018.
Should Linton 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. No substitute counsel will
be appointed. 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 has been 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. (Tex. Crim. App. 1997, amended
eff. Sept. 1, 2011). 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 In re Schulman, 252 S.W.3d at 409 n.22.
Counsel's motion to withdraw from representation of Linton is granted, and
counsel is discharged from representing Linton. Notwithstanding counsel’s discharge,
counsel must send Linton a copy of our decision, notify him of his right to file a pro se
Linton v. State Page 3
petition for discretionary review, and send this Court a letter certifying counsel's
compliance with Texas Rule of Appellate Procedure 48.4. TEX. R. APP. P. 48.4; see also In
re Schulman, 252 S.W.3d at 409 n.22.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins1
Affirmed
Opinion delivered and filed February 13, 2019
Do not publish
[CRPM]
1
The Honorable Al Scoggins, Senior Justice of the Tenth Court of Appeals, sitting by assignment of the
Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003 (West 2013).
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