                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-17-00391-CR

EARNEST UTLEY,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                           From the 278th District Court
                              Walker County, Texas
                              Trial Court No. 27683


                           MEMORANDUM OPINION


       Appellant, Earnest Utley, was charged by indictment with murder, a first-degree

felony. See TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). Appellant pleaded “not

guilty” to the charged offense, and this matter proceeded to trial.

       At the conclusion of the trial, the jury found appellant guilty of murder and

sentenced him to seventy-five years’ incarceration in the Institutional Division of the
Texas Department of Criminal Justice. Thereafter, 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 has 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


Utley 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

          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



          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 letter to appellant, appellate counsel indicated the following:

          I received notice from the Tenth Court of Appeals that you have requested a copy of the
          appeal record from your Walker County case. I have enclosed a copy of that record which
          consist[s] of the clerk’s record which has all the documents filed with the clerk, and the six
          volumes of the reporter’s record. The first three volumes are bound together with a
          colored page between each volume to make them easier to find. Volume 6 has the exhibits
          which were documents. It identifies but does not contain videos and photographs. The
          subject of each photograph is described in the testimony and the index at the front of
          volume 6 tells you where to look for that testimony. This is a copy for your use. You do
          not need to return it. You have already received the brief and motion previously filed.

                   By this letter I am informing the Court of Appeals and the attorney for the State
          the record is being provided to you. The Court has determined that the deadline to file the
          response will be 30 days after you get this record. I will keep you informed of any events
          in the appeal if a notice is not sent directly to you.

Furthermore, we granted appellant multiple motions for extension of time to file his pro se response;
however, appellant failed to file a pro se response. Therefore, given the above, 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).

Utley v. State                                                                                             Page 3
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

advise him of his right to file a petition for discretionary review.3 See TEX. R. APP. P. 48.4;


        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

Utley v. State                                                                                        Page 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).




                                                            JOHN E. NEILL
                                                            Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed February 27, 2019
Do not publish
[CRPM]




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.

Utley v. State                                                                                           Page 5
