Gregory Michael Celestine v. State

NUMBER 13-10-00170-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
GREGORY MICHAEL CELESTINE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the Criminal District Court
of Jefferson County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Vela
Memorandum Opinion by Justice Garza
A jury convicted appellant, Gregory Michael Celestine, of possession of a
controlled substance, specifically, phencyclidine (“PCP”), a second-degree felony. See
TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (Vernon 2010). The trial court found
appellant to be a repeat felony offender and sentenced him to ten years’ imprisonment.
See TEX. PENAL CODE ANN. §§ 12.32, 12.42(b) (Vernon Supp. 2010).
I. ANDERS BRIEF
Celestine’s appellate counsel has filed a motion to withdraw and a brief in
support thereof in which he states that he has diligently reviewed the entire record and
has concluded that there is no reversible error. See Anders v. California, 386 U.S. 738
(1967); High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978).
Counsel has informed this Court that he has (1) examined the record and has found no
arguable grounds to advance on appeal, (2) served copies of the brief and motion to
withdraw on Celestine, and (3) informed Celestine of his right to review the record and
to file a pro se response.1 See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d
503, 510 n.3 (Tex. Crim. App. 1991). Celestine filed a pro se response. See In re
Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008).
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488
U.S. 75, 80 (1988). We have reviewed the entire record, counsel’s brief, and
appellant’s pro se response, and find that the appeal is wholly frivolous and without
merit. 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 it considered the issues raised in
the brief and reviewed the record for reversible error but found none, the court of
1
The Texas Court of Criminal Appeals has held that “the pro se response need not comply with
the rules of appellate procedure in order to be considered. Rather, the response should identify for the
court those issues which the indigent appellant believes the court should consider in deciding whether the
case presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App.
2008) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.–Waco 1997, no pet.)).
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appeals met the requirements of Texas Rule of Appellate Procedure 47.1.”); Stafford,
813 S.W.2d at 509. Accordingly, we affirm the judgment of the trial court.
III. MOTION TO WITHDRAW
In accordance with Anders, Celestine’s counsel has filed a motion to withdraw as
his appellate counsel. See Anders, 386 U.S. at 744; see also In re Schulman, 252
S.W.3d at 408 n.17 (citing 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.”) (citations omitted)). We grant the motion to withdraw.
We order that counsel must, within five days of the date of this opinion, send a
copy of the opinion and judgment to Celestine and 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).
________________________
DORI CONTRERAS GARZA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
10th day of February, 2011.
2
No substitute counsel will be appointed. Should Celestine wish to seek further review 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 that was
overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with
this Court, after which it will be forwarded to the Texas Court of Criminal Appeals. See TEX. R. APP. P.
68.3, 68.7. Any petition for discretionary review must comply with the requirements of Rule 68.4 of the
Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.
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