                                                                                      ACCEPTED
                                                                                  03-15-00473-CR
                                                                                          6612918
                                                                       THIRD COURT OF APPEALS
                                                                                  AUSTIN, TEXAS
                                                                             8/24/2015 8:17:52 AM
                                                                                JEFFREY D. KYLE
                                                                                           CLERK
                  IN THE THIRD COURT OF APPEALS
                         AT AUSTIN, TEXAS
                                                              FILED IN
                                                       3rd COURT OF APPEALS
JAMES ERIC GRANT,                     §                    AUSTIN, TEXAS
        Appellant                     §                8/24/2015 8:17:52 AM
                                      §     CAUSE NO. 03-15-00473-CR
                                                         JEFFREY D. KYLE
V.                                    §     TRIAL COURT NO.Clerk69,168
                                      §
THE STATE OF TEXAS,                   §
        Appellee                      §


                         BRIEF OF APPELLANT


     Appealed from the 264th Judicial District Court, Bell County, Texas
                     Hon. Martha J. Trudo, presiding




                                      COPELAND LAW FIRM
                                      P.O. Box 399
                                      Cedar Park, TX 78613
                                      Tel/Fax: 512.215.8114
                                      Email: tcopeland14@yahoo.com

                                      Tim Copeland
                                      State Bar No. 04801500
                                      Attorney for Appellant




APPELLANT HEREBY WAIVES ORAL ARGUMENT
                          TABLE OF CONTENTS

                                                    Page

Table of Contents                                   i

Index of Authorities                                ii-iv

Identity of Parties and Counsel                     1

Statement of the Case                               3

Background                                          4

Summary of the Argument                             6

Professional Evaluation of the Record               7

Conclusion                                          16

Notice to Client                                    17

Prayer                                              18

Certificate of Service and Compliance with Rule 9   19
      and Kelly v. State




                                        i
                        INDEX OF AUTHORITIES

Authorities                                                 Page
                      United States Supreme Court cases

Anders v. California                                        7,16
     386 U.S. 738 (1967)

McCoy v. Court of Appeals                                   16
    486 U.S. 429, 108 S.C. 1895, 100 L.Ed.2d 4440 (1988)

Padilla v. Kennedy                                          8
      130 S. Ct. 1477 (U.S. 2010)

Strickland v. Washington                                    12,13
      466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674


                    Texas Court of Criminal Appeals cases

Bradley v. State                                            10
      608 S.W.2d 652 (Tex. Crim. App. 1980)

Dansby v. State                                             8
     398 S.W.3d 233 (Tex. Crim. App. 2013)

Daniels v. State                                            18
     30 S.W.3d 407 (Tex. Crim. App. 2000)

Ganious v. State                                            7
     436 S.W.2d 137 (Tex. Crim. App. 1969)

Hernandez v. State                                          11
     613 S.W.2d 287 (Tex. Crim. App. 1981) (op. on reh’g)




                                      ii
                   INDEX OF AUTHORITIES, continued

Authorities                                                      Page

              Texas Court of Criminal Appeals cases, continued


Hernandez v. State                                               13
     988 S.W.2d 770 (Tex. Crim. App. 1999)

Jackson v. State                                                 15
     680 S.W.2d 809 (Tex. Crim. App. 1984)

Jackson v. State                                                 13
     877 S.W.2d 768 (Texas Crim. App. 1994)

Jackson v. State                                                 13
     973 S.W.2d 954, 955 (Tex. Crim. App. 1998)

Kelly v. State                                                   18
      436 S.W.3d 313 (Tex. Crim. App. 2014)

Mitchell v. State                                                10
     608 S.W.2d 226 (Tex. Crim. App. 1980)

Nunez v. State                                                   15
     565 S.W.2d 536 (Tex. Crim. App. 1978)

Rickles v. State                                                 14,15
      202 S.W.3d 759, 763 (Tex. Crim. App. 2006)

Speth v. State                                                   11
      6 S.W.3d 530, 533 (Tex. Crim. App. 1999)

Stafford v. State                                                16
      813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991)



                                  3
                INDEX OF AUTHORITIES, continued

Authorities                                                        Page

                         Texas Court of Appeal cases

Antwine v. State                                                   14,15
     268 S.W.3d 634 (Tex. App. – Eastland 2008, pet. ref’d)

Bradfield v. State                                                 15
      42 S.W.3d 350 (Tex. App. – Texarkana 2001, pet. ref’d)

Burruss v. State                                                   13
     20 S.W.3d 179, 186 (Tex. App. – Texarkana 2000, pet. ref’d)

Coronado v. State                                                  16
     996 S.W.2d 283, 285 (Tex. App. – Waco 2000, pet. ref’d)

Gutierrez v. State                                                 11
      354 S.W.3d 1 (Tex. App. – Texarkana 2011,
      pet. granted on other grounds)

Kanouse v. State                                                   15
     958 S.W.2d 509, 510 (Tex. App. – Beaumont 1996, no pet.)


                                Statutes

TEX. CODE CRIM. PROC. Art. 21.02 and 26.13 (West 2014)             8,9

TEX. CODE CRIM. PROC. Art. 42.12 §11(a)                            11

TEX. HEALTH AND SAFETY CODE §481.115 (West 2010)                   3,4

TEX. RULES APP. PROC.                                              17




                                   4
                        IN THE THIRD COURT OF APPEALS
                               AT AUSTIN, TEXAS

 JAMES ERIC GRANT,                            §
         Appellant                            §
                                              §      CAUSE NO. 03-15-00473-CR
 V.                                           §      TRIAL COURT NO. 69,168
                                              §
 THE STATE OF TEXAS,                          §
         Appellee                             §


                                  BRIEF OF APPELLANT


 TO THE HONORABLE COURT OF APPEALS:

                      IDENTITY OF PARTIES AND COUNSEL

         COMES NOW, James Eric Grant, Appellant, who would show the Court that

 interested parties herein are as follows:

         JAMES ERIC GRANT, appellant, TDCJ No. 0193588, Darrington Unit, 59

 Darrington Rd., Rosharon, Texas 77583.

         GREGORY SIMMONS, Trial Attorney for Appellant, 714 4th Street,

 Killeen, Texas 76541.

TIM COPELAND, Appellate Attorney for Appellant, P.O. Box 399, Cedar Park, Texas 78613.




 Cause No. 03-15-00473-CR
 James Eric Grant v. The State of Texas
 Brief of Appellant                                                                      1
       MICHAEL WALDMAN and BOB ODOM, Bell County Assistant District

Attorneys, Trial and Appellate Attorneys, respectively, for Appellee, the State of

Texas, P.O. Box 540, Belton, Texas 76513.




Cause No. 03-15-00473-CR
James Eric Grant v. The State of Texas
Brief of Appellant                                                             2
                      IN THE THIRD COURT OF APPEALS
                             AT AUSTIN, TEXAS

JAMES ERIC GRANT,                        §
        Appellant                        §
                                         §    CAUSE NO. 03-15-00473-CR
V.                                       §    TRIAL COURT NO. 69,168
                                         §
THE STATE OF TEXAS,                      §
        Appellee                         §

                            STATEMENT OF THE CASE

       On May 5, 2011, pursuant to plea agreement, James Eric Grant entered a

guilty plea to the offense of possession of a controlled substance, to-wit: cocaine,

one gram or more but less than four grams, a third degree felony. See TEX.

HEALTH AND SAFETY CODE §481.115 (West 2010). His indictment also

alleged two prior felony convictions for enhancement purposes, but the state

abandoned one paragraph as part of the plea agreement, and Grant pled “true” to

only one enhancement paragraph. (C.R. 1, pp. 5, 33 and 88). On June 3, 2011, after

hearing punishment evidence, in keeping with the agreement, the trial court deferred

a finding on Grant’s guilt, and he was placed instead on community supervision for

ten years. (C.R. 1, p. 39). On November 1, 2013, the State filed a motion to

adjudicate his guilt. The motion to adjudicate alleged various violations of the terms

and conditions of Grant’s community supervision. (C.R. 1, p. 54). On May          19,


Cause No. 03-15-00473-CR
James Eric Grant v. The State of Texas
Brief of Appellant                                                                 3
2014, the trial court held a hearing on the State’s first amended motion to adjudicate.

(See, C.R. 1, p. 66). At that hearing, Grant entered an open plea of “true” to all of

the State’s allegations in its amended motion. (R.R. 5, p. 7). The trial court

adjudicated Grant’s guilt and, after hearing punishment evidence, assessed a

sentence of 18 years on June 6, 2014. (C.R. 1, p. 88). Grant filed a notice of appeal

from that judgment and sentence on July 17, 2014, forty-one days after sentencing.

His appeal was dismissed by this Court on October 31, 2014, for want of jurisdiction.

(See CCA No. 03-14-00447-CR). Grant filed an application for writ of habeas

corpus with the Texas Court of Criminal Appeals. He alleged ineffective assistance

of trial counsel in giving timely notice of appeal. The Court of Criminal Appeals

granted the application by order dated June 24, 2015, and Grant subsequently gave

due notice of appeal from the original judgment and conviction. (C.R. 1, p. 114).

                                     BACKGROUND

Original Plea

       On May 5, 2011, Grand entered a plea of “guilty” to the third degree felony

offense of possession of a controlled substance, cocaine, and “true” to one

enhancement paragraph. (R.R. 3, p. 26). After properly admonishing Grant and

securing waivers of jury trial, both in writing and in open court, the trial court

accepted his plea and written plea admonitions. The latter included a stipulation of

Cause No. 03-15-00473-CR
James Eric Grant v. The State of Texas
Brief of Appellant                                                                  4
evidence. (C.R. 1, pp. 30-35). The plea documents were signed by Grant and/or his

trial attorney and appear proper in all regards.

Adjudication Motion

       As a result of his pleas, Grant’s guilt was deferred, and he was placed on 10

years’ community supervision. (C.R. 1, p. 39). On November 1, 2013, the State

filed its first motion to adjudicate Grant’s guilt. (C.R. 1, p. 54). The motion alleged

that Grant had used cocaine on one occasion in violation of the terms of his

community supervision and that he had failed in a number of ways to satisfy his

financial obligations imposed by various terms of his community supervision. (C.R.

1, pp. 54-55). In an amended motion, the State alleged the commission of two

additional offenses. (C.R. 1, pp. 66-67). At a hearing on May 19, 2014, Grant

entered an open plea of “true” to all the allegations in the State’s amended motion

to adjudicate. (C.R. 1, p. 78 and see R.R. 5, p. 6). The trial court admonished Grant

concerning his plea and the enhanced punishment range, and both Grant and his trial

counsel indicated their understanding of the proceedings. (R.R. 5, pp. 6-9).

Punishment Evidence

       At his subsequent sentencing hearing, Grant’s probation officer, Stephanie

Frincke, testified concerning Grant’s failure to abide by the terms and conditions of

his community supervision. Grant testified in his own defense that he had medical

Cause No. 03-15-00473-CR
James Eric Grant v. The State of Texas
Brief of Appellant                                                                  5
conditions, as well as other problems, that initially made it difficult to meet the terms

and conditions of his community supervision, but with a new support system in

place, he said that he felt he could complete his community supervision if given

another chance. After hearing argument of counsel, the trial court found the

allegations in the State’s first amended motion to adjudicate guilt “true” based upon

Grant’s plea of “true”, adjudicated his guilt, and sentenced him to 18 years’

incarceration. (R.R. 7, p. 40).

Judgment

       The written judgment entered by the trial court on June 6, 2014 is entitled

“Judgment Adjudicating Guilt.” (C.R. 1, pp. 88-89). The judgment states that Grant

was previously granted deferred adjudication community supervision on June 3,

2011, that he entered a plea of “true” to the allegations in the State’s amended motion

to adjudicate, that the trial court found that Grant had violated terms and conditions

of his community supervision as alleged, and that, finally, in the best interests of

justice, he should be punished by confinement in the Institutional Division of the T

                         SUMMARY OF THE ARGUMENT

       Appellate counsel concludes that the record examined contains no reversible

error or arguable grounds for appeal.



Cause No. 03-15-00473-CR
James Eric Grant v. The State of Texas
Brief of Appellant                                                                    6
              PROFESSIONAL EVALUATION OF THE RECORD

       Counsel has reviewed the records in this case, which consist of the various

documents in the Clerk’s Record and the transcript of Grant’s plea to the State’s

amended motion to adjudicate as well as his sentencing hearing. As a matter of his

professional judgment, Counsel reluctantly concludes that the records contain no

reversible error. Neither are there any jurisdictional defects apparent in the records

examined. In such a case, where Counsel concludes that there are no arguable

grounds for reversal, he is required to present a professional evaluation of the record

demonstrating why there are no arguable grounds to be advanced for appeal. See,

Anders v. California, 386 U.S. 738 (1967); Ganious v. State, 436 S.W.2d 137 (Tex.

Crim. App. 1969). That evaluation follows.

Arguable Points of Error

       Various appellate courts, including the Third Court of Appeals at Austin and

the Thirteenth Court of Appeals at San Antonio have provided instructive lists for

consideration when complying with Anders. Accordingly, Counsel in this case has

reviewed Mr. Grant’s records for error centering on the following areas:

       1.     Whether his original indictment was a sufficient charging
              instrument.

       2.     Whether there were any adverse pretrial rulings, including but
              not limited to rulings on motions to suppress, motions to quash

Cause No. 03-15-00473-CR
James Eric Grant v. The State of Texas
Brief of Appellant                                                                  7
              or the like (in this case limited to Mr. Grant’s adjudication
              hearing).

       3.     Whether there was compliance with Texas Code of Criminal
              Procedure 26.13 and, if appropriate, Padilla v. Kennedy, 130 S.
              Ct. 1477 (U.S. 2010).

       4.     Whether the issue of competency was raised prior to sentencing,
              so as to warrant an inquiry by the court, and whether appellant
              was mentally competent when the court accepted his pleas (in
              both the original case and in his adjudication hearing).

       5.     Whether appellant’s pleas were freely and voluntarily made.

       6.     Whether there were any adverse rulings during the punishment
              hearing on objections or motions.

       7.     Whether there was any failure on the part of appellant’s trial
              counsel to object to fundamental error.

       8.     Whether the sentence imposed was within the applicable range
              of punishment.

       9.     Whether the written judgment accurately reflects the sentence
              that was imposed and whether any credits were properly applied.

       10.    Whether there is evidence to support a guilty plea in a felony case
              (or, in this case, a plea of true to the adjudication motion)
              including an examination of the records with regard to the
              recently enunciated exception to the general rule that the State
              must only prove one violation of a community supervision
              condition to sustain a revocation order, as carved out by the
              Texas Court of Criminal Appeals in Dansby v. State, 398 S.W.3d
              233, 241-243 (Tex. Crim. App. 2013).

       11.    Whether an examination of the records reflects that appellant was
              denied effective assistance of counsel.

Cause No. 03-15-00473-CR
James Eric Grant v. The State of Texas
Brief of Appellant                                                                  8
       Additionally, because this case involves deferred adjudication proceedings,

Counsel has examined that area of jurisprudence for potential violations of due

process with regard to imposition of terms and conditions of community supervision

including whether those terms and conditions were reasonably imposed as well as

the adequacy of the State’s notice of violations of the terms and conditions of his

community supervision which resulted in the instant adjudication of his guilt.

Prior Proceedings – Guilty Plea and Conviction

       Grant’s original indictment for possession of a controlled substance tracked

the then applicable statutory provisions of §481.115 of the Texas Health and Safety

Code and appears regular in all respects. The indictment meets the “requisites of an

Indictment” provided in the Code of Criminal Procedure’s article 21.02, and thus

constitutes a proper charging instrument. See TEX. CODE CRIM. PROC. art.

21.02 (West 2014).

Original Compliance with Texas Code of Criminal Procedure 26.13

       On May 5, 2011, Grant appeared before the trial court with his attorney and

entered a plea of guilty to the offense charged – possession of one to four grams of

cocaine. Grant’s plea included the execution by him and his trial attorney of “Guilty

Plea Admonishments” which included a waiver of jury trial and stipulation of


Cause No. 03-15-00473-CR
James Eric Grant v. The State of Texas
Brief of Appellant                                                                9
evidence wherein Grant judicially confessed to the alleged offense. (C.R. 1, p. 30-

35). The documents were signed by Grant and his attorney and appear proper in all

regards.

Adjudication Motion

       As a result of his plea, Grant was placed on 10 years’ deferred adjudication.

In the adjudication motion the subject of his subsequent hearing and of this appeal,

the State alleged that Grant had violated the terms and conditions of that community

supervision in a number of particulars. See, Motion to Adjudicate, 1st Amended

Motion to Adjudicate and Judgment Adjudicating Guilt. (C.R. 1, pp. 54, 66 and 88,

respectively).

       A motion to revoke probation and, by extension, a motion to adjudicate guilt,

need not meet the particulars of an indictment, information or complaint. Mitchell

v. State, 608 S.W.2d 226 (Tex. Crim. App. 1980). The allegations in such motions

need only be sufficient to apprise probationer of the violations alleged to have

occurred. In the instant case, it appears that the allegations in Grant’s motion to

adjudicate were sufficiently specific to apprise him of the violations alleged such

that he may not, for the first time on appeal, claim that they were vague or did not

otherwise provide fair notice. See C.R. 1, pp. 54 and 66, and Bradley v. State, 608

S.W.2d 652 (Tex. Crim. App. 1980). Moreover, Grant made no such complaint at

Cause No. 03-15-00473-CR
James Eric Grant v. The State of Texas
Brief of Appellant                                                               10
his adjudication hearing, but, in fact through his attorney, he acknowledged receipt

of adequate notice of the motions and their contents. (R.R. 5, pp.9-10).

Reasonableness of Terms and Conditions of Community Supervision

       A trial court has broad discretion in imposing conditions of community

supervision. The conditions must be reasonable and must be designed to “protect or

restore the community, protect or restore the victim, or punish, rehabilitate or reform

the defendant.” See TEX. CODE CRIM. PROC. Art. 42.12 §11(a); and, see Speth

v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999). A review of the terms and

conditions of community supervision imposed upon Grant (including all

amendments to his community supervision) do not show that any term or condition

relied upon to adjudicate Grant’s guilt based on a violation of his community

supervision appears unreasonable on its face. Moreover, even if a term or condition

was unreasonable, complaint may not be made for the first time on appeal. Gutierrez

v. State, 354 S.W.3d 1 (Tex. App. – Texarkana 2011, pet. granted on other grounds).

That Grant never complained of a particular term or condition thus operated as a

waiver of the right to complain after a subsequent adjudication of his guilt based

upon a violation of any term of his community supervision. Hernandez v. State,

613 S.W.2d 287 (Tex. Crim. App. 1981) (op. on reh’g).



Cause No. 03-15-00473-CR
James Eric Grant v. The State of Texas
Brief of Appellant                                                                  11
Adverse Pre-Hearing Rulings

       There were no adverse pre-adjudication hearing rulings.

Evidentiary Rulings/Fundamental Error

       There were no adverse rulings during the adjudication hearing, and no failure

on the part of Grant’s trial counsel to object to fundamental error.

Trial Error/Ineffective Assistance of Counsel

       Appellate counsel found no evidence in the records examined which would

support a claim of ineffectiveness of trial counsel.

       Strickland v. Washington decided by the United States Supreme Court in

1984 established the standard by which to gauge the adequacy of representation of

counsel and articulated a two-step analysis:

       1.     Did the attorney’s performance fail to constitute “reasonably
              effective assistance,” i.e., did the defense attorney’s
              representation fall below an objective standard of reasonableness
              under prevailing professional norms?

       2.     If so, was there a reasonable probability that, but for counsel’s
              unprofessional errors, the result of the proceedings could have
              been different?
                                               – see Strickland, 466 U.S. 668,
                                               694, 104 S. Ct. 2052, 2068, 80
                                               L.Ed.2d 674, 690.




Cause No. 03-15-00473-CR
James Eric Grant v. The State of Texas
Brief of Appellant                                                                12
       (The test in Strickland is properly applied to the punishment phase of a non-

capital case as well. See, Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim.

App. 1999).

       In considering a claim of ineffective assistance of counsel, a reviewing court

begins with a strong presumption that counsel was effective. Jackson v. State, 877

S.W.2d 768, 771 (Texas Crim. App. 1994). A reviewing court presumes counsel’s

actions were motivated by sound trial strategy. Id. A complainant has the burden

of rebutting that presumption by evidence from the record affirmatively supporting

the claim. See, Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998).

However, even if a complainant can prove such error occurred, he must then prove

that but for the error, there is a reasonable probability the outcome of the proceeding

would have been different. See, Burruss v. State, 20 S.W.3d 179, 186 (Tex. App. –

Texarkana 2000, pet. ref’d).

       In the instant case, evidence adduced at Grant’s adjudication and sentencing

hearings included Grants plea of “true” as well as testimony from Grant’s probation

officer, Stephanie Frincke. She testified about certain aspects of Grant’s community

supervision file which detailed Grant’s various contacts, meetings, and

correspondence with the community supervision officer and office and including his

failure to pay all fees assessed against him. (R.R. 5, pp. 18-26). In his testimony,

Cause No. 03-15-00473-CR
James Eric Grant v. The State of Texas
Brief of Appellant                                                                  13
Grant denied that he had failed to provide documentation of a medical condition to

Frincke’s office. However, he admitted that he had failed to report because he had

thought that he had a terminal illness, and he wanted to be with his family in his last

days. (R.R. 7, p. 36). He also admitted to other violations of his community

supervision including the use of cocaine while on community supervision. (R.R. 6,

p. 18).

       In light of his own testimony, even if examination of his adjudication hearing

revealed instances where his trial counsel possibly committed an error of some kind

in his representation (which the record does not support), it is highly unlikely that

but for such error, there was a reasonable probability that the outcome of Grant’s

adjudication hearing would have been different.

Sufficiency of Evidence of Violations

       A trial court’s order revoking community supervision and, by extension

adjudicating guilt, is reviewed under an abuse of discretion standard. Rickles v.

State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Antwine v. State, 268 S.W.3d

634, 636 (Tex. App. – Eastland 2008, pet. ref’d). On violation of a condition of

community supervision, the defendant is entitled to a hearing limited to the

determination by the court of whether a violation has occurred. In an adjudication

hearing, the State must prove by a preponderance of the evidence that a defendant

Cause No. 03-15-00473-CR
James Eric Grant v. The State of Texas
Brief of Appellant                                                                  14
violated the terms of his community supervision. Rickles v. State, 202 S.W.3d at

763-4; Antwine v. State, 268 S.W.3d at 636. Proof of any one of the alleged

violations of the conditions of community supervision is sufficient to support an

adjudication order. Antwine v. State, 268 S.W.3d at 636.

       Here, Grant admitted that he had used cocaine during his term of community

supervision. (R.R. 6, p. 18). That violation alone constitutes sufficient evidence to

justify the adjudication of his guilt based upon a violation of his community

supervision and the imposition of resulting punishment. Thus, the trial court did not

abuse its discretion in moving to adjudicate Grant’s guilt.

Sufficiency – Punishment

       The trial court assessed an 18-year prison sentence upon adjudication of

Grant’s guilt after hearing sentencing evidence. A review of the evidence for

sufficiency in the case is inappropriate with respect to that assessment of

punishment. See, Bradfield v. State, 42 S.W.3d 350, 351 (Tex. App. – Texarkana

2001, pet. ref’d); Kanouse v. State, 958 S.W.2d 509, 510 (Tex. App. – Beaumont

1996, no pet.)(citing Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App.

1984)). The sentence ultimately assessed by the trial court of 18 years following

adjudication of Grant’s guilt was within the applicable punishment range for the

enhanced subject offense, and the sentence, on its face, was not “unreasonable” or

Cause No. 03-15-00473-CR
James Eric Grant v. The State of Texas
Brief of Appellant                                                                15
“irrational.” See Nunez v. State, 565 S.W.2d 536 (Tex. Crim. App. 1978). Thus,

Grant cannot establish any error arising from the punishment assessed by the trial

court.

Standard of Review – “Frivolous Appeals”

         In an Anders case, a reviewing court must, “after a full examination of all

proceedings, […] decide whether the case is wholly frivolous.” Anders, 386 U.S. at

744, 87 S. Ct. at 1400; accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim.

App. 1991); Coronado v. State, 996 S.W.2d 283, 285 (Tex. App. – Waco 2000, pet.

ref’d). 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, 108 S.C. 1895,

1902, 100 L.Ed.2d 4440 (1988). Arguments are frivolous if they “cannot

conceivably persuade the court.” Id. at 426, 108 S. Ct. at 1901. An appeal is not

frivolous if based on “arguable grounds.” Stafford, 813 S.W.2d at 511.


                                     CONCLUSION

         Here, appellate counsel cannot in good faith argue that there is a basis “in law

or in fact” that an error occurred in the adjudication of Grant’s guilt or in his

subsequent assessment of punishment. For that reason, appellate counsel is required

to move for leave to withdraw to allow appellant the opportunity to submit his own


Cause No. 03-15-00473-CR
James Eric Grant v. The State of Texas
Brief of Appellant                                                                    16
appellate brief should he choose to do so. See, Stafford v. State, 813 S.W.2d 503

(Tex. Crim. App. 1991). Accompanying this brief then, attached as Appendix 1, is

a copy of appellate counsel’s motion to withdraw on those grounds. An original of

the motion has been separately filed with this Court.

                                 NOTICE TO CLIENT

        Counsel hereby affirms that he has notified James Eric Grant, appellant,

 of the filing of this brief in the referenced case, of his right to file a pro se

 response to the brief should he choose to do so and of his right to examine his

 appellate records per the applicable Texas Rules of Appellate Procedure to

 accomplish that goal. (See Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App.

 2014) and Appendix 2)). Notice of those rights and of Counsel’s motion to

 withdraw was provided to Mr. Grant by both certified mail, return receipt

 requested, and by first-class mail at his last known mailing address at the date of

 this filing, to-wit:

                             James Eric Grant
                             TDCJ No. 01936588
                             Darrington Unit
                             59 Darrington Rd.
                             Rosharon, TX 77583




Cause No. 03-15-00473-CR
James Eric Grant v. The State of Texas
Brief of Appellant                                                                17
                      COMPLIANCE WITH KELLY v. STATE

       Finally, Counsel also hereby affirms that he has provided to Mr. Grant a

motion for access to his appellate record as required by the dictates of Kelly v. State,

436 S.W.3d 313 (Tex. Crim. App. 2014) for the referenced case. (See copy of same

in Appendix 2).

                                         PRAYER

        WHEREFORE, Counsel respectfully prays that this Court permit him

 to withdraw from this case after this Court’s own examination of the record and

 to afford Mr. Grant his right to file a pro se response brief if he wishes to do so.


                                         COPELAND LAW FIRM
                                         P.O. Box 399
                                         Cedar Park, TX 78613
                                         Phone: 512.897.8196
                                         Fax: 512.215.8114
                                         Email: tcopeland14@yahoo.com

                                         By: /s/Tim Copeland
                                                Tim Copeland
                                                State Bar No. 04801500
                                                Attorney for Appellant




Cause No. 03-15-00473-CR
James Eric Grant v. The State of Texas
Brief of Appellant                                                                      18
                  CERTIFICATE OF SERVICE AND OF
               COMPLIANCE WITH RULE 9 and KELLY v. STATE

        This is to certify that on August 2, 2015, a true and correct copy of the
 above and foregoing document was served on Bob Odom, Assistant District
 Attorney of Bell County, P.O. Box 540, Belton, Texas 76513 and on James Eric
 Grant, TDCJ No. 01936588, Darrington Unit, 59 Darrington Rd., Rosharon, TX 77583 in
 accordance with the Texas Rules of Appellate Procedure, and that Appellant’s
 brief is in compliance with Rule 9 of the Texas Rules of Appellate Procedure
 and that portion which must be included under Rule 9.4(i)(1) contains 3612
 words. Further, Counsel certifies that he has complied with the dictates of Kelly
 v. State insofar as providing a motion for Mr. Grant to gain access to his
 appellate records if he so chooses.

                                                    /s/ Tim Copeland
                                                        Tim Copeland




Cause No. 03-15-00473-CR
James Eric Grant v. The State of Texas
Brief of Appellant                                                                19
APPENDIX I
                      IN THE THIRD COURT OF APPEALS
                             AT AUSTIN, TEXAS

JAMES ERIC GRANT,                       §
        Appellant                       §
                                        §          CAUSE NO. 03-15-00473-CR
V.                                      §          TRIAL COURT NO. 69,168
                                        §
THE STATE OF TEXAS,                     §
        Appellee                        §

                             MOTION TO WITHDRAW

 TO THE HONORABLE JUDGES OF SAID COURT:

       NOW COMES Tim Copeland, PO Box 399, Cedar Park, Texas 78613,

 appellate attorney for James Eric Grant, and respectfully moves this Honorable

 Court to allow said attorney to withdraw as attorney of record in this matter,

 terminating his representation of the above referenced appellant and for good cause

 would respectfully show this Honorable Court as follows:

                                              I.

       Contemporaneous with the filing of this Motion to Withdraw, counsel has

 filed an Anders brief. Withdrawal of counsel is necessary to permit Mr. Grant to file

 a pro se response brief, if he so desires.
                                          II.

                                Pending Deadlines

      Appellant’s brief is due September 11, 2015.

                                          III.

                 Documents Filed and Prepared for Defendant

      Counsel has prepared a docketing statement and Appellant’s Brief in this

cause, and has filed same with this Court. Counsel previously prepared Appellant’s

Notice of Appeal, Request for Reporter’s Record and Designations of Clerk’s

Record.

                                          IV.

                  Notice of Last Known Address of Defendant

      Counsel has notified Appellant of the filing of this Motion to Withdraw and

of the filing of this brief by mailing a copy of this Motion to Appellant’s last

known mailing address by regular, first class mail and by certified mail, return

receipt requested, and addressed as follows:

                               James Eric Grant
                               TDCJ No. 01936588
                               Darrington Unit
                               59 Darrington Road
                               Rosharon, TX 77583

                                     V.

      WHEREFORE, Movant prays this Honorable Court to allow Movant to

withdraw from the representation of appellant and would, in all things, relieve
Movant herein, discharging Movant from her obligations and responsibilities to

this Defendant in this matter.

                                      Respectfully submitted,

                                      COPELAND LAW FIRM
                                      P.O. Box 399
                                      Cedar Park, TX 78613
                                      Pho: 512.897.8126
                                      Fax: 512.215.8114
                                      Email: tcopeland14@yahoo.com

                                      /s/ Tim Copeland
                                          Tim Copeland
                                          State Bar No. 04801500
                                          Attorney for Appellant


                    CERTIFICATE OF SERVICE AND OF
                       COMPLIANCE WITH RULE 9

       This is to certify that on August 2, 2015, a true and correct copy of the
above and foregoing document was served on Bob Odom, Assistant District
Attorney of Bell County, P.O. Box 540, Belton, Texas 76513 and on James Eric Grant,
TDCJ No. 01936588, Darrington Unit, 59 Darrington Rd., Rosharon, TX 77583 in
accordance with the Texas Rules of Appellate Procedure, and that Appellant’s brief
is in compliance with Rule 9 of the Texas Rules of Appellate Procedure and that
portion which must be included under Rule 9.4(i)(1) contains 462 words. Further,
Counsel certifies that he has complied with the dictates of Kelly v. State insofar
as providing a motion for Mr. Grant to gain access to his appellate records if he so
chooses.


                                           /s/ Tim Copeland
                                           Tim Copeland
APPENDIX II
                    COPELAND LAW FIRM
                                       P.O. Box 399
                                  Cedar Park, Texas 78613
                                     512.215.8114 (phone/fax)

TIM COPELAND*                                                   ERIKA COPELAND**
*Board Certified - Oil, Gas & Mineral Law                       **Of Counsel
Texas Board of Legal Specialization




                Certified Mail No. 7015 0640 0000 3705 1092

August 24, 2015

James Eric Grant
TDCJ No. 01936588
Darrington Unit
59 Darrington Rd.
Rosharon, TX 77583

        Re:Cause No. 67,168 (Bell County);
           Appeal No. 03-15-00473-CR
 Dear Mr. Grant:

      Enclosed please find a copy of my motion to withdraw as counsel and a brief
pursuant to Anders v. California that I have prepared and filed in your case. After a
diligent search of both the clerk's record and reporter's record in your case and a
review of the applicable law, it is my opinion that no reversible error occurred at
your plea or sentencing proceedings.

      Whenever appellate counsel files a motion such as this, the law provides the
appellant the right to review the record and file a response identifying to the
appellate court any grounds he thinks are non-frivolous issues to be raised on his
behalf that the appellate court should consider in deciding whether the case
presents any meritorious grounds for appeal. Because I have filed this motion and
brief, you now have the right to review the records and file a response or brief if you
so choose in any or all of your cases. To assist you in obtaining the records if you
wish to review them, I have enclosed a Motion for Pro Se Access to the Appellate
Record for you to
      file for each case. In order to obtain the appellate records, you must sign and
date the motions and mail them to the Third Court of Appeals within ten days of
the date of this letter to the following address:

                           Jeffrey D. Kyle
                           Clerk, Third Court of Appeals
                           209 W. 14th St., Rm. 101
                           Austin, TX 78701

     The Court of Appeals will then direct the clerk of the trial court to provide you
with copies of the appellate records. Your response will be due to be filed in the 3rd
Court of Appeals within 30 days of the date the clerk provides the record to you.

      Whether or not you file a response, the law requires the Court of Appeals to
review the record to determine if the Court agrees with my assessment that no
meritorious grounds for appeal exist, i.e., that no reversible error exists. If the Court
does not agree, but instead believes there are non-frivolous issues to be raised on your
behalf, the Court must abate the appeal to have another attorney appointed to review
the record on your behalf.

     Should the Court of Appeals ultimately determine that there are no meritorious
grounds to be raised and that your appeal is frivolous, the Court will affirm your
conviction. You may then file a pro se petition for discretionary review with the Texas
Court of Criminal Appeals. Such petition must be filed within 30 days of the date
the Court of Appeals renders its judgment.

     Feel free to write me if you have any questions about the procedure utilized in
your appeal. I will do my best to answer any questions you may have.

       Again, I am sorry I came to the conclusions I did, but many times with pleas, that
is all we are left with.
                                               Sincerely,



                                               Tim Copeland
TC:aw
encl.
                           CAUSE NO. 03-15-00473-CR

JAMES ERIC GRANT                        §        IN THE COURT OF APPEALS

V.                                      §        THIRD JUDICIAL DISTRICT

THE STATE OF TEXAS                      §        SITTING AT AUSTIN, TEXAS


           MOTION FOR ACCESS TO APPELLATE RECORD

      NOW COMES James Eric Grant, appellant, TDCJ No. 01936588,

Darrington Unit, 59 Darrington Rd., Rosharon, Texas 77583 and respectfully moves

this Honorable Court to grant him access to the appellate record in the above-

referenced cause in order to effectuate his right to file a response to the Anders brief

filed herein by Appellant’s appellate counsel.

                                         Respectfully submitted,



                                                 James Eric Grant
                                                 TDCJ No. 01935688
                                                 Darrington Unit
                                                 59 Darrington Rd.
                                                 Rosharon, TX 77583



                                         Date:
                CERTIFICATE OF SERVICE AND OF
                   COMPLIANCE WITH RULE 9

       This is to certify that on _______________, 2015, a true and correct copy
of the above and foregoing document was served on Bob Odom Assistant District
Attorney of Bell County, P.O. Box 540, Belton, Texas 76513 in accordance with
the Texas Rules of Appellate Procedure, and that this motion is in compliance
with Rule 9 of the Texas Rules of Appellate Procedure and that portion which
must be included under Rule 9.4(i)(1) contains 207 words.




                                          James Eric Grant
                                          TDCJ No. 01935688
                                          Darrington Unit 59
                                          Darrington Rd.
                                          Rosharon, TX 77583


                                     Date:
                                                                                                     ACCEPTED
                                                                                                 03-15-00473-CR
                                                                                                         6616383
                                                                                      THIRD COURT OF APPEALS
                                                                                                 AUSTIN, TEXAS
                                                                                           8/24/2015 10:31:06 AM
                                                                                               JEFFREY D. KYLE
                                                                                                          CLERK


                    COPELAND LAW FIRM
                                       P.O. Box 399
                                  Cedar Park, Texas 78613
                                    512.215.8114 (phone/fax)

TIM COPELAND*                                                  ERIKA COPELAND**
(512) 897-8196 mobile/text                                     (512) 897-8126 mobile/text
tcopeland14@yahoo.com                                          ecopeland63@yahoo.com

*Board Certified - Oil, Gas & Mineral Law                      **Of Counsel
Texas Board of Legal Specialization



August 24, 2015

Clerk of the Court
Third Court of Appeals
Austin, TX
Via e-file

        Re:     Cause No. 03-15-00473-CR (Trial Court No. 69,168)
                James Eric Grant v. The State of Texas

Dear Mr. Kyle:

       Please be advised that I have complied with the dictates of Kelly v. State, 436
S.W. 3d 313 (Tex. Crim. App. 2014) with regard to notification of the above-
referenced client of 1) the filing of an Anders brief in his case and of my filing of a
motion to withdraw, 2) his right to file a pro se response to the brief and of his right
to review the appellate records preparatory to filing that response, and 3) informed
him of his pro se right to seek discretionary review should the Court of Appeals
declare his appeal frivolous. I have also prepared and mailed to him a motion for
his use in obtaining access to his appellate records should he choose to do so.

                                                  Very truly yours,

                                                  /s/Tim Copeland

                                                    Tim Copeland
TC:aw




                   CERTIFICATE OF SERVICE AND OF
                      COMPLIANCE WITH RULE 9

       This is to certify that on August 24, 2015, a true and correct copy of the
above and foregoing document was served on Bob Odom, Assistant District Attorney
of Bell County, P.O. Box 540, Belton, Texas 76513 and on James Eric Grant, TDCJ
No. 01936588, Darrington Unit, 59 Darrington Rd., Rosharon, TX 77583 in accordance
with the Texas Rules of Appellate Procedure, and that this letter is in compliance
with Rule 9 of the Texas Rules of Appellate Procedure and that portion which must
be included under Rule 9.4(i)(1) contains 344 words.


                                            /s/ Tim Copeland
                                            Tim Copeland
