Scott Richard Pendergraft v. State

Opinion issued August 22, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00033-CR
NO. 01-18-00034-CR
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SCOTT RICHARD PENDERGRAFT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from 262nd District Court
Harris County, Texas
Trial Court Cause Nos. 1512987 & 1512988
MEMORANDUM OPINION
Appellant, Scott Richard Pendergraft, pleaded no contest to the second-degree
felony offense of fraudulent use or possession of identifying information in the
underlying trial court cause number 1512987.1 Appellant also pleaded no contest
1
See TEX. PENAL CODE ANN. §§ 32.51(a)(1)(A), (E), (b)(1), (c)(3) (West 2011).
for the state-jail-felony offense of securing execution of a document by deception in
the underlying trial court cause number 1512988.2 Both of these no-contest pleas
were entered without agreed punishment recommendations from the State, pending
a presentence investigation (“PSI”) report and hearing.
At the PSI hearing, the trial court found appellant guilty as charged and
assessed his punishment at five years’ confinement for the first charge and one year’s
confinement in state jail for the second charge, with both sentences to be served
concurrently. These sentences are within the applicable sentencing ranges.3 The
trial court certified that these were not plea-bargained cases, and that appellant had
the right of appeal. See TEX. R. APP. P. 25.2(a)(2)(A). Appellant timely filed a
notice of appeal and the same, new counsel was appointed in both cases.
Appellant’s appointed counsel has filed a motion to withdraw, along with an
Anders brief in both cases, stating that the record presents no reversible error and
that, therefore, these appeals are without merit and are frivolous. See Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396 (1967). Counsel’s brief meets the Anders
requirements by presenting a professional evaluation of the record and supplying
this Court with references to the record and legal authority. See id. at 744, 87 S. Ct.
2
See TEX. PENAL CODE ANN. §§ 32.46(a)(1), (b)(4) (West 2011).
3
See TEX. PENAL CODE ANN. §§ 12.33(a), 12.35(a) (West 2011).
2
at 1400; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978).
Counsel indicates that he has thoroughly reviewed the record and that he is unable
to advance any grounds of error that warrant reversal. See Anders, 386 U.S. at 744,
87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st
Dist.] 2006, no pet.).
Appellant’s counsel has informed us that he has delivered a copy of the motion
to withdraw and Anders brief to appellant and informed him of his right to file a pro
se response after getting access to the records. See In re Schulman, 252 S.W.3d 403,
408 (Tex. Crim. App. 2008). Furthermore, counsel has certified that he has sent the
form motion for pro se access to the records to appellant for his response. See Kelly
v. State, 436 S.W.3d 313, 322 (Tex. Crim. App. 2014). Appellant has timely filed
an amended pro se response to his counsel’s Anders brief.
We have independently reviewed the entire records in these appeals, and we
conclude that no reversible error exists in the record, that there are no arguable
grounds for review, and that therefore the appeals are frivolous. See Anders, 386
U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—
determines, after full examination of proceedings, whether the appeal is wholly
frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing
court must determine whether arguable grounds for review exist); Bledsoe v. State,
178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (reviewing court is not to address
3
merits of each claim raised in Anders brief or pro se response after determining there
are no arguable grounds for review); Mitchell, 193 S.W.3d at 155. An appellant may
challenge a holding that there are no arguable grounds for appeal by filing a petition
for discretionary review in the Texas Court of Criminal Appeals. See Bledsoe, 178
S.W.3d at 827 & n.6.
Accordingly, we affirm the judgments of the trial court and grant counsel’s
motions to withdraw in both cases.4 See TEX. R. APP. P. 43.2(a). Attorney Terrence
Gaiser must immediately send the required notice and file a copy of that notice with
the Clerk of this Court. See TEX. R. APP. P. 6.5(c). We dismiss any other motions
as moot.
PER CURIAM
Panel consists of Justices Keyes, Kelly, and Goodman.
Do not publish. TEX. R. APP. P. 47.2(b).
4
Appointed counsel still has a duty to inform appellant of the result of these appeals
and that he may, on his own, pursue discretionary review in the Texas Court of
Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App.
2005).
4