                           NUMBER 13-07-00746-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG


CHARLES DOUGLAS RUSSELL,                                                 Appellant,

                                         v.

THE STATE OF TEXAS,                                                       Appellee.


  On appeal from the 25th District Court of Gonzales County, Texas.


                     MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Justice Benavides

      Charles Douglas Russell was indicted for murder and aggravated assault. TEX .

PENAL CODE ANN . § 19.02 (Vernon 2003), § 22.02 (Vernon Supp. 2008). During a jury

trial, evidence was admitted regarding deoxyribonucleic acid (DNA) by and through the

State’s expert, Ms. Debora Furman. Russell was found guilty and sentenced to 99 years’

imprisonment for the offense of murder and 65 years’ imprisonment for the offense of
aggravated assault in the Texas Department of Criminal Justice. The conviction was

affirmed by this Court.1

         In September 2004, Russell filed a pro se Motion for Forensic DNA Testing and

requested counsel. Counsel was appointed by the trial court who, after investigation, filed

a subsequent Motion for Forensic DNA Testing and accompanying affidavit signed and

sworn by Russell. Without a hearing, the motion was denied. Russell’s appellate counsel,

concluding that "there are no arguable grounds to be advanced on appeal," filed an Anders

brief in which he reviewed the merits, or lack thereof, of the appeal. We affirm.

                                                 I. DISCUSSION

A.       Compliance with Anders v. California

         Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant’s

court-appointed appellate counsel has filed a brief with this Court, stating that his review

of the record yielded no grounds or error upon which an appeal can be predicated.

Although counsel’s brief does not advance any arguable grounds of error, it does present

a professional evaluation of the record demonstrating why there are no arguable grounds

to be advanced on appeal.2 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



         1
          Russell v. State, No. 13-00-00720-CR, 2001 Tex. App. LEXIS 5636 (Tex. App. – Corpus Christi,
Aug. 16, 2001, no pet.).

         2
               The only argum ent raised by the appellant was that the trial court should have held a hearing.
Article 64.03 does not require a hearing to determ ine if the defendant is entitled to DNA testing. T EX . C O DE
C R IM . P R O C . A N N . AR T . 64.03 (Vernon Supp. 2006); W hitaker v. State, 160 S.W .3d 5, 7-8 (Tex. Crim . App.
2004) cert. denied, 540 U.S. 864 (2004).; Rivera v. State, 89 S.W .3d 55, 58-59 (Tex. Crim . App. 2002).
                                                         2
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).

        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 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) informed

appellant of his right to review the record and to file a pro se response within thirty days.3

See Anders, 386 U.S. at 744; 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. 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 (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,

826-28 (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



        3
           The Texas Court of Crim inal Appeals has held that “the pro se response need not com ply with 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 m eritorious issues.” In re Schulman, 252 S.W .3d 403, 409 n.23 (Tex. Crim . App. 2008) (quoting
W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App.–W aco 1997, no pet.)).
                                                     3
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 for appellant. See Anders, 386 U.S. at 744; 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.) (noting that “[i]f 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 the opinion and judgment to appellant and to advise appellant of his right to file

a petition for discretionary review.4 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).



                                                                        __________________________
                                                                        GINA M. BENAVIDES,
                                                                        Justice

Do not publish.
See TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this the 9th day of July, 2009.

         4
            No substitute counsel will be appointed. Should appellant wish to seek further review of this case
by the Texas Court of Crim inal Appeals, he m ust either retain an attorney to file a petition for discretionary
review or file a pro se petition for discretionary review. Any petition for discretionary review m ust be filed within
thirty days from the date of either this opinion or the last tim ely m otion for rehearing that was overruled by this
Court. See T EX . R. A PP . P. 68.2. Any petition for discretionary review m ust be filed with this Court, after which
it will be forwarded to the Texas Court of Crim inal Appeals. See T EX . R. A PP . P. 68.3; 68.7. Any petition for
discretionary review should com ply with the requirem ents of Rule 68.4 of the Texas Rules of Appellate
Procedure. See T EX . R. A PP . P. 68.4.



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