David Bobby Calderon, Jr. v. State

NUMBERS 13-06-223-CR AND 13-06-224-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG DAVID BOBBY CALDERON, JR., Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 26th District Court of Williamson County, Texas. MEMORANDUM OPINION Before Justices Yañez, Rodriguez, and Benavides Memorandum Opinion by Justice Rodriguez A jury found appellant, David Bobby Calderon, Jr., guilty of possession of a controlled substance with intent to deliver, possession of more than five but less than 50 pounds of marihuana, and felony possession of a firearm, but found appellant did not use or exhibit a deadly weapon. (1) After appellant pleaded "true" to the penalty enhancement allegation, the jury sentenced him to ten years for being a felon in possession of a firearm, life for possession of a controlled substance with intent to deliver, and 20 years for possession of marihuana. The trial court imposed the sentences handed down by the jury and, upon motion by the State, ordered that these sentences--which run concurrently with each other--should run consecutively to the sentence in appellant's prior burglary conviction. Appellant's counsel filed an Anders brief in which he presented arguable grounds of error. We affirm. I. Compliance with Anders v. California Appellant's court-appointed counsel filed a brief in which he has concluded that there are no issues in these appeals which might reasonably be argued to this Court. He has concluded that these appeals are frivolous and without merit. Anders v. California, 386 U.S. 738, 744 (1967). Appellant's brief meets the requirements of Anders. Id. at 744-45; see High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). In compliance with Anders, counsel presented a professional evaluation of the record and referred this Court to what, in his opinion, are all issues which might arguably support the appeals. See Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see also High, 573 S.W.2d at 812. Counsel has informed the Court that he notified appellant of the following: (1) it is counsel's professional evaluation that there are no issues which will support a reversal of appellant's convictions or sentences; and (2) appellant has the right to review the appellate record and to file a pro se brief. See Anders, 386 U.S. at 744-45; see also Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991) (en banc); High, 573 S.W.2d at 813. Counsel has forwarded appellant a copy of the consolidated appellate brief that sets forth all issues which might arguably support the appeals. He has also provided mailing information needed for filing a pro se brief and for obtaining a copy of the records. More than thirty days have passed, and appellant has not filed any pro se brief. See Anders, 386 U.S. at 744-45; see also High, 573 S.W.2d at 813. II. Discussion In compliance with Anders, counsel raises and reviews the following issues as possible grounds for our review: (1) although the State's chief witness might have been an accomplice, no request was made to have her so-designated, no egregious harm can be shown, and, therefore, nothing is presented for review; (2) the evidence supports the verdicts of guilt and so nothing is presented for review; and (3) the sentences fell within the statutory range of punishment for the offenses of conviction and nothing is presented for review. As counsel concludes, the appeals are frivolous because there is nothing in the records which might arguably support a reversal of either the verdicts of guilt or the sentences imposed. The Supreme Court advised appellate courts that upon receiving a "frivolous appeal" brief, they must conduct "a full examination of all the proceeding[s] to decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.-Corpus Christi 2003, no pet.). Accordingly, we have carefully reviewed the records and have considered the issues raised in the brief, and we have found nothing that would arguably support the appeals. See Stafford, 813 S.W.2d at 509. We agree with counsel that there is no basis for presenting any legally nonfrivolous issue and conclude the appeals are 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 that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1."). III. Conclusion The judgments of the trial court are affirmed. IV. Withdrawal of Counsel This Court may grant a motion to withdraw from counsel in connection with an Anders brief. Gearhart v. State, 122 S.W.3d 459, 469 (Tex. App.-Corpus Christi 2003, pet. ref'd) (citing 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)). Counsel has not requested to withdraw from further representation of appellant on appeal. We hereby order counsel to advise appellant 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) (en banc) (per curiam). We further order counsel to file any motion to withdraw as court-appointed counsel with this Court within ten days of the date of this opinion. NELDA V. RODRIGUEZ Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this 18th day of October, 2007. 1. The two indictments were joined upon motion of the State, and a single trial was had upon all three charges. The briefing of the appeals in the two matters has been consolidated. We also consider both appeals in this consolidated opinion.