                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-16-00259-CR

MATTHEW JOHN MCVANEY JR.,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 52nd District Court
                              Coryell County, Texas
                             Trial Court No. 15-22907


                           MEMORANDUM OPINION


      Appellant, Matthew John McVaney Jr., was charged by indictment with online

solicitation of a minor, a second-degree felony. See TEX. PENAL CODE ANN. § 33.021(c), (f)

(West Supp. 2016). Appellant pleaded “not guilty” to the charged offense, and this matter

proceeded to trial. At the conclusion of the evidence, the jury found appellant guilty of

the charged offense and assessed punishment at twelve years’ incarceration in the
Institutional Division of the Texas Department of Criminal Justice. The trial court

certified appellant’s right of appeal, and this appeal followed.

                                       I.     ANDERS BRIEF

       Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d

493 (1967), appellant’s court-appointed appellate counsel filed a brief and a motion to

withdraw with this Court, stating that his review of the record yielded no error upon

which an appeal can be predicated. Counsel’s brief meets the requirements of Anders as

it presents a professional evaluation demonstrating why there are no arguable grounds

to advance on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008)

(“In Texas, an Anders brief need not specifically advance ‘arguable’ points of error if

counsel finds none, but it must provide record references to the facts and procedural

history and set out pertinent legal authorities.”) (citing Hawkins v. State, 112 S.W.3d 340,

343-44 (Tex. App.—Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3

(Tex. Crim. App. 1991) (en banc).

       In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]

1978), appellant’s counsel has carefully discussed why, under controlling authority, there

are no reversible errors in the trial court’s judgment. Counsel has informed this Court

that he has: (1) examined the record and found no arguable grounds to advance on

appeal; (2) served a copy of the brief and counsel’s motion to withdraw on appellant; and

(3) provided appellant with a copy of the record and informed him of his right to file a


McVaney v. State                                                                        Page 2
pro se response.1 See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Stafford, 813 S.W.2d at 510

n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. More than an adequate period of time

has passed, and appellant has not filed a pro se response.2 See In re Schulman, 252 S.W.3d

at 409.

                                               II.     INDEPENDENT REVIEW



          The Texas Court of Criminal Appeals has held that “‘the pro se response need not comply with
            1

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.)).

            2   In his certificate of counsel, appellant’s appellate counsel indicated that, among other things, he
has:

       1.   notified appellant that I filed a motion to withdraw as counsel with an accompanying Anders brief,
            and provided a copy of each to appellant;

       2.   informed appellant of his right to file a pro se response identifying what he believes to be
            meritorious grounds to be raised in his appeal, should he so desire;



       3.   advised appellant of his right to review the appellate record, should he wish to do so, preparatory
            to filing that response;

       4.   explained the process for obtaining the appellate record, provided a Motion for Pro Se Access to
            the Appellate Record lacking only appellant’s signature and the date, and provided the mailing
            address for this Court . . . .

         We have not received a request from appellant regarding the record. Given the above and
appellant’s failure to file a pro se response, we have fair assurance that appellate counsel has complied with
the Court of Criminal Appeals’s decision in Kelly v. State. See 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014)
(“To this list we now add that appointed counsel who files a motion to withdraw and Anders brief must
also (4) take concrete measures to initiate and facilitate the process of actuating his client’s right to review
the appellate record, if that is what his client wishes. . . . Appointed counsel should include in this letter to
the appellate a form motion for this purpose, lacking only the appellant’s signature and the date, and
inform the appellant that, in order to effectuate his right to review the appellate record pro se, should he
choose to invoke it, he must sign and date the motion and send it on to the court of appeals within ten days
of the date of the letter from appellate counsel. Counsel should make sure to supply the appellant with the
mailing address for the relevant court of appeals.”).

McVaney v. State                                                                                            Page 3
       Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.

75, 80, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988). We have reviewed the entire record

and counsel’s brief and have found nothing that would arguably support an appeal. 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

requirement 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, appellant’s attorney has asked this Court for

permission to withdraw as counsel in this case. See Anders, 386 U.S. at 744, 87 S. Ct. at

1400; 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 counsel’s

motion to withdraw. Within five days of the date of this Court’s opinion, counsel is

ordered to send a copy of this opinion and this Court’s judgment to appellant and to




McVaney v. State                                                                         Page 4
advise him of his right to file a petition for discretionary review.3 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).




                                                            AL SCOGGINS
                                                            Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 22, 2017
Do not publish
[CR25]




        3 No substitute counsel will be appointed. Should appellant wish to seek further review of this
case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for
discretionary review or must file a pro se petition for discretionary review. Any petition for discretionary
review must be filed within thirty days from the date of this opinion or the last timely motion for rehearing
or timely motion for en banc reconsideration was overruled by this Court. See TEX. R. APP. P. 68.2. Any
petition and all copies of the petition for discretionary review must be filed with the Clerk of the Court of
Criminal Appeals. See id. at R. 68.3. Any petition for discretionary review should comply with the
requirements of rule 68.4 of the Texas Rules of Appellate Procedure. See id. at R. 68.4; see also In re Schulman,
252 S.W.3d at 409 n.22.

McVaney v. State                                                                                         Page 5
