Robert Earl Jones v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-12-0395-CR
No. 07-12-0396-CR
________________________
ROBERT EARL JONES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 320th District Court
Potter County, Texas
Trial Court Nos. 65,654-D & 65,655-D, Honorable Richard Dambold, Presiding
May 8, 2013
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Following open pleas of guilty, Appellant, Robert Earl Jones, was convicted of
delivery of cocaine in a drug-free zone in an amount of four grams or more but less than
200 in cause number 65,654-D and in cause number 65,655-D. 1 After pleading true to
the drug-free zone enhancement paragraphs, he was sentenced to concurrent twelve
1
TEX. HEALTH & SAFETY CODE ANN. § 481.134(c)(1) (W EST SUPP. 2012).
year sentences. In presenting these appeals, counsel has filed an Anders 2 brief in
support of a motion to withdraw. We grant counsel=s motion and affirm.
In support of his motion to withdraw, counsel certifies he has conducted a
conscientious examination of the records and, in his opinion, the records reflect no
potentially plausible basis for reversal of Appellant’s convictions. Anders v. California,
386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman, 252
S.W.3d 403, 406 (Tex.Crim.App. 2008). Counsel candidly discusses why, under the
controlling authorities, the records support that conclusion. See High v. State, 573
S.W.2d 807, 813 (Tex.Crim.App. 1978). Counsel has demonstrated that he has
complied with the requirements of Anders and In re Schulman by (1) providing a copy of
the brief to Appellant, (2) notifying him of his right to file a pro se response if he desired
to do so, and (3) informing him of his right to file a pro se petition for discretionary
review. In re Schulman, 252 S.W.3d at 408. 3 By letter, this Court granted Appellant an
opportunity to exercise his right to file a response to counsel=s brief, should he be so
inclined. Id. at 409 n.23. Although untimely, Appellant did file a response on March 8,
2013, and a second response on May 2, 2013. The State did not favor us with a brief.
By the Anders brief, counsel raises one potential issue evaluating whether
Appellant’s sentence was within the legally prescribed range. Counsel then concludes
2
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
3
Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary review
upon execution of the Trial Court=s Certification of Defendant=s Right of Appeal, counsel must comply with
Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days
after this opinion is handed down, send Appellant a copy of the opinion and judgment together with
notification of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408
n.22 & at 411 n.35. The duty to send the client a copy of the court of appeals’s decision is an
informational one, not a representational one. It is ministerial in nature, does not involve legal advice, and
exists after the court of appeals has granted counsel’s motion to withdraw. Id. at 411 n.33.
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after analyzing section 12.32 of the Texas Penal Code and sections 481.112(d) and
481.134(c)(1) of the Texas Health and Safety Code that Appellant’s sentence was well
within the prescribed range of punishment.
When we have an Anders brief by counsel and a pro se response by an
appellant, we have two choices. We may determine that the appeal is wholly frivolous
and issue an opinion explaining that we have reviewed the record and find no reversible
error; Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005) (citing Anders,
386 U.S. at 744), or we may determine that arguable grounds for appeal exist and
remand the cause to the trial court so that new counsel may be appointed to brief
issues. Id. (citing Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991)).
We have independently examined the entire records to determine whether there
are any non-frivolous issues which might support these appeals. See Penson v. Ohio,
488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d at
409; Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no
such issues. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After
reviewing the records, counsel=s brief, and Appellant=s pro se responses, we agree with
counsel that there is no plausible basis for reversal of either conviction. See Bledsoe,
178 S.W.3d at 824.
Accordingly, the trial court=s judgments are affirmed and counsel's motion to
withdraw is granted.
Patrick A. Pirtle
Justice
Do not publish.
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