Aubrey Markeith Alexander v. State

                 NUMBERS 13-05-235-CR, 13-05-247-CR,

   AND 13-05-248-CR

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

AUBREY MARKEITH ALEXANDER,                               Appellant,

                                           v.

THE STATE OF TEXAS,                                              Appellee.

                  On appeal from the 400th District Court

                          of Fort Bend County, Texas.

                     MEMORANDUM OPINION

                     Before Justices Hinojosa, Yañez, and Castillo

                        Memorandum Opinion by Justice Castillo  

Appellant Aubrey Markeith Alexander pleaded guilty to the offenses, enhanced by two prior felony convictions, of (1) possession of a controlled substance (cocaine),^[1] (2) burglary of a building,^[2] and (3) evading arrest in a motor vehicle.^[3]  The trial court accepted the guilty pleas and set punishment at five years imprisonment for possession, eight years for burglary, and sixteen years for evading arrest, and entered judgments of conviction and sentence.  Alexander appeals.  His court-appointed counsel filed an Anders brief.  See Anders v. California, 386 U.S. 738, 744-45 (1967). We affirm.

I.  Background

As part of the non-negotiated plea proceedings, Alexander executed trial court documents, admitted in evidence, that demonstrate he understood the trial court's written admonishments, and waived his statutory and constitutional rights including the right to (1) trial by jury, (2) remain silent, and (3) cross-examine witnesses.  For each offense, he signed a separate written stipulation and judicial confession, admitting he committed the offenses.  He further admitted his pleas were voluntarily

 made. The trial court entered an order declaring, among other things, that Alexander voluntarily and knowingly executed court documents waiving his rights and that, after due admonishments, Alexander understood the consequences of his guilty pleas and judicially confessed. During the punishment hearing, Alexander testified on his own behalf and admitted he burglarized a building, fled in a vehicle to avoid apprehension by a police officer, and used and possessed cocaine.  Alexander timely filed his notices of appeal.  The trial court has certified that this is not a plea bargain case and Alexander has the right to appeal.  See Tex. R. App. P. 25.2(a)(2).

II.  Analysis

A.  Anders

Anders addresses the extent of the duty of a court‑appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal.  Anders,  386 U.S. at 739.  The requirements of Anders are met in the event appointed counsel thoroughly studies the record, consults with the defendant and trial counsel and conscientiously concludes, and so advises the appellate court, that there are no meritorious grounds of appeal (provided the appellate court is satisfied from its own review of the record, and in light of any points personally raised by the defendant, that appointed counsel's conclusion is correct).  Id. at 741.  If counsel finds the case to be wholly frivolous, after a conscientious examination of it, he should so advise the appellate court and request permission to withdraw.  Id. at 744.  That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.  Id. A copy of counsel's brief should be furnished to the indigent and time allowed him to raise any points that he chooses; the courtBnot counselBthen proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.  Id. 

If the court agrees, it may grant counsel's request to withdraw and dismiss the appeal or proceed to a decision on the merits.  Id.  On the other hand, if the appellate court finds any of the legal points arguable on their merits (and therefore not frivolous), it must afford appellant the assistance of counsel to argue the appeal.  Id.  If the appellate court is satisfied that counsel has diligently investigated the possible grounds of appeal and agrees with counsel's evaluation of the case, then leave to withdraw may be allowed and leave to appeal may be denied.  Id. at 741‑42.  This procedure would not force appointed counsel to brief his case against his client, but would merely afford the latter that advocacy which a non-indigent defendant is able to obtain.  See id. at 745.  It also induces the appellate court to pursue all the more vigorously its own review, because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel.  Id.

Accordingly, we must, "after a full examination of all the proceedings . . . decide whether the case is wholly frivolous."  Id. at 744; see Penson v. Ohio, 488 U.S. 75, 80 (1988); accord Stafford v. State, 813 S.W.2d 503, 509‑11 (Tex. Crim. App. 1991).  An appeal is "wholly frivolous" or "without merit" when it "lacks any basis in law or fact."  McCoy v. Court of Appeals, 486 U.S. 429, 439 n.10 (1988).  Arguments are frivolous when they "cannot conceivably persuade the court."  Id. at 436.  An appeal is not wholly frivolous when it is based on "arguable grounds." Stafford, 813 S.W.2d at 511.

B.  Anders Briefs  

For Alexander's three appeals, court-appointed counsel has filed a brief asserting that (1) he has diligently reviewed the entire appellate record and applicable law, and (2) in his professional opinion, the appeal of the judgment of conviction in each cause is without merit and is frivolous because the records reflect no reversible error and there are no grounds upon which an appeal can be predicated in compliance with Anders.  See High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978).  Counsel provides discussion and an analysis of Alexander's right to appeal under rule 25.2 of the rules of appellate procedure.  See Tex. R. App. P. 25.2(a)(2).  Counsel concedes that the only matters upon which Alexander may rely as a basis for appeal are matters relating to the adjudication of guilt and the imposition of sentence; however, he finds no grounds for appeal.

In the Anders brief counsel maintains the following: (1) the indictment (a) alleges the essential elements of the offense, (b) affords sufficient notice of the nature and cause of the accusation necessary to prepare a defense, and (c) absent a motion to quash, error is forfeited; (2) error as to pretrial motions was not preserved; (3) the written admonishments, waiver of statutory and constitutional rights, and written stipulation and judicial confession demonstrate no error either in execution or in the trial court's approval of them, and substantially comply with article 26.13 of the code of criminal procedure;^[4] (4) the evidence was sufficient to sustain the conviction because the plea of guilty, in and of itself, satisfies the constitutional requirement that the State prove guilt beyond a reasonable doubt;^[5] (5) the sentence imposed was within the authorized range of punishment for a state jail felony offense, enhanced by two prior convictions^[6] for each of the three charges, and does not constitute cruel and unusual punishment; and (6) Alexander did not object to rulings, orders, or procedures adopted during the culpability and punishment phases of the proceedings and, accordingly, did not preserve error for review.^[7]

Counsel has provided a copy of a letter to Alexander in which he apprised Alexander that (1) counsel filed an Anders brief, (2) Alexander has the right to review the appellate record and file a brief, and (3) Alexander may file the motion attached to the letter within thirty days to request a copy of the appellate record.  Alexander filed the motion in his three appeals, requesting a copy of the record.  This Court granted the motion, ordered counsel to provide Alexander a copy of the appellate record and proof to this Court of compliance with the order, and ordered Alexander to file his pro se brief within forty-five days of the order. By letter to Alexander dated June 14, 2005, counsel apprised Alexander that he would be forwarding a copy of the appellate record.  Counsel has certified to this Court that he mailed a copy of the appellate record to Alexander.  The court-ordered deadline for filing a pro se brief has expired.  Alexander has not filed a pro se brief.  See McMahon v. State, 529 S.W.2d 771, 772 (Tex. Crim. App. 1975).

C.  Discussion

In the appellate brief Alexander reviews (1) the indictment, (2) pre‑trial motions, (3) the plea proceedings including the pleas, admonishments, and executed court documents, (4) the sufficiency of the evidence, including court documents admitted in evidence containing Alexander's judicial confession and waivers of his state and federal constitutional rights, (5) the sentencing proceedings, including Alexander's testimony admitting guilt, (6) the legality of the sentence, (7) the judgment, and (8) objections and preservation of error.  Guided by court-appointed counsel's advocacy in the appellate brief, see Anders, 386 U.S. at 745, our independent review of the appellate record, see Penson, 488 U.S. at 80, and law applicable to the charged offenses, we conclude that the appeals are wholly frivolous.  See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005);^[8] McCoy, 486 U.S. at 439 n.10.

III.  Disposition

Because we conclude that the appeals are wholly frivolous, we affirm.  Bledsoe, 178 S.W.3d at 828.

Counsel in this case has requested to withdraw from further representation of Alexander on appeal.  An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief.  Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511 (noting that Anders brief should be filed with request for withdrawal from case).  We hereby order counsel to advise Alexander of the disposition of this case and the availability of discretionary review.  See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).  We grant counsel's motion to withdraw as court‑appointed counsel on appeal.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P.47.2(b).

Memorandum Opinion delivered and filed

this 16th  day of March  2006.

  

---

^[1]See Tex. Health & Safety Code Ann. '481.115 (Vernon 2003). In trial court cause number 38,912A, appeal number 13-05-248-CR, the amended indictment alleged that Alexander possessed less than one gram of cocaine, enhanced with prior felony convictions.

^[2]See Tex. Pen. Code Ann. _38.02 (Vernon 2003). In trial court cause number 38,910, appeal number 13-05-235-CR, the indictment alleged that Alexander intentionally and knowingly entered a building not then open to the public without the effective consent of the owner with the intent to commit theft.

^[3]See Tex. Pen. Code Ann. _30.04 (Vernon 2003). In trial court cause number 38,911A, appeal number 13-05-247-CR, the indictment alleged that Alexander intentionally fled in a motor vehicle from a peace officer attempting to lawfully detain him. 

^[4] Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2005).

^[5] Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005) (requiring the State to adduce evidence of guilt).

^[6] Tex. Pen. Code Ann. _12.33 (Vernon 2003).

^[7] Tex. R. App. P. 33.1.

^[8] In the underlying case in Bledsoe v. State, No. 12‑00‑00271‑CR, 2003 Tex. App. LEXIS 9860 (Tex. App.BTyler Nov. 19, 2003) (not designated for publication), our sister court appointed appellant new appellate counsel after finding merit in the appellant's pro se brief filed in response to first counsel's Anders brief. After the second appointed counsel also filed an Anders brief, our sister court agreed with counsel's determination under Anders and affirmed the trial court judgment.  Id.  On the appellant's pro se petition for discretionary review, the practical implication of the court of criminal appeals' opinion is that Anders requirements were met when our sister court found merit to the appellant's pro se brief filed in connection with the first Anders brief, allowed first appellate counsel to withdraw, appointed new appellate counsel, and handed down an opinion that complied with rule 47.1 of the appellate rules without addressing the merits of the pro se brief in the subsequent Anders appeal. Bledsoe v. State, 178 S.W.3d 824, 826-27(Tex. Crim. App. 2005).