

 


 


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
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
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.
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 argument raised by the appellant was that the trial court should have held a hearing. 
Article 64.03 does not require a hearing to determine if the defendant is entitled to DNA testing.   Tex. Code
Crim. Proc. Ann. art. 64.03 (Vernon Supp. 2006); Whitaker 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).
3.  The Texas Court of Criminal Appeals has held that "the pro se response need not comply 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 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.)).
4.  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 file a pro se petition for discretionary review.  Any petition for discretionary review must be filed within
thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this
Court.  See Tex. R. App. P. 68.2.  Any petition for discretionary review must be filed with this Court, after which
it will be forwarded to the Texas Court of Criminal Appeals.  See Tex. R. App. P. 68.3; 68.7.  Any petition for
discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate
Procedure.  See Tex. R. App. P. 68.4.
