Gerald Wayne Smith v. State
Gerald Wayne Smith v. State
Opinion
IN THE
TENTH COURT OF APPEALS
No. 10-07-00045-CR
Gerald Wayne Smith,
Appellant
v.
The State of Texas,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 1998-129-C2
ORDER
Before the Court is appointed counsel’s motion to withdraw, accompanied by an Anders brief. This Court affirmed Smith’s conviction by opinion dated January 20, 2010. Counsel sent Smith a copy of the opinion by certified mail, return receipt requested, also advising Smith of his right to file a petition for discretionary review. The Court of Criminal Appeals has granted an extension of time to file a petition for discretionary review, though it is unclear whether the extension request was filed by counsel or by Smith pro se. Because counsel has fulfilled his constitutional and statutory duties, his representation has already ended, and we will dismiss the motion to withdraw as moot.
The Court of Criminal Appeals has clearly defined the scope of appointed counsel’s responsibilities after an intermediate court of appeals affirms a conviction. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997); In re K.D., 235 S.W.3d 452, 454 (Tex. App.—Waco 2007, order) (per curiam).
The scope of the duty attached to counsel is governed by the right to which that duty attaches. The right to counsel on an appeal of right, under Art. 26.04, ends with the conclusion of the direct appeal. That means counsel on appeal must inform a defendant of the result of the direct appeal and the availability of discretionary review. But, because there is no right to counsel on discretionary review, the duty of counsel ends there. While it may be wiser to give more complete information to a defendant, it is neither constitutionally nor statutorily required.
Wilson, 956 S.W.2d at 27; accord Ex parte Owens, 206 S.W.3d 670, 673-74 (Tex. Crim. App. 2006).
Counsel’s duty to Smith ended when he sent Smith a copy of the opinion affirming his conviction and advised him of the availability of discretionary review. Thus, we dismiss counsel’s motion to withdraw as moot.
PER CURIAM
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Motion dismissed as moot
Order issued and filed March 31, 2010
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jury is provided with this information can there be a fair evaluation of how gang membership reflects on the gang-member's character. Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim. App. 1995).
In this case, witness Kelly Willis, a probation officer, testified that in 1994 Appellant identified himself to her as a gang member. Appellant stipulated that he had two tattoos: (1) "A-g-g Land 5" and the number "5/2"; and (2) "5" followed by an "X" followed by the numeral "2." Witness Officer Young testified that these are "Crips" gang-member tattoos and that the Fort Worth Police Department records show that Appellant is a "Crips" gang member. Appellant himself testified that he had been a "Crips" gang member but that he had disassociated himself with the "Crips" gang at the end of 1995 or early in 1996 when his son was born.
The State offered Officer Young's testimony as a gang-member expert. His testimony was that Appellant had "Crips" tattoos; that the "Crips" gang was engaged in crime and violence; that the "Five Deuce Crips" had a bad reputation in the community; and that Appellant was listed as a gang member in the Tarrant County Police Intelligence file.
The State did produce evidence at the punishment phase that Appellant was an actual gang member. The State further produced evidence as to the activities of gang members in general and the activities of the "Crips" gang in particular. This evidence was all admissible under the authority of Ybarra, Anderson, and Beasley, supra.
Appellant's point is overruled. The judgment is affirmed.
FRANK G. McDONALD
Chief Justice (Retired)
Before Chief Justice Davis,
Justice Cummings, and
Chief Justice McDonald (Retired)
Affirmed
Opinion delivered and filed July 1, 1998
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