Austin Marquis Collins v. the State of Texas

NOS. 12-22-00295-CR
12-22-00296-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

AUSTIN MARQUIS COLLINS, § APPEALS FROM THE 114TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION
PER CURIAM
Austin Marquis Collins appeals his convictions for possession of a controlled substance
and tampering with physical evidence. Appellant’s counsel filed a brief in compliance with
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and Gainous v.
State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm.

BACKGROUND
Appellant was charged by indictment with possession of a controlled substance in penalty
group 2 in an amount of less than one gram 1 and tampering with physical evidence. 2 Pursuant to
a plea bargain agreement, he pleaded “guilty,” and the trial court deferred findings of guilt and
placed him on community supervision for a period of three years.

1
A state jail felony punishable by confinement for a term of not more than two years or less than 180 days
and a possible fine not to exceed $10,000.00. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.116(a), (b) (West
Supp. 2022); TEX. PENAL CODE ANN. §§ 12.35(a), (b) (West 2019).
2
A third-degree felony punishable by imprisonment for a term of not more than ten years or less than two
years and a possible fine not to exceed $10,000.00. See TEX. PENAL CODE ANN. §§ 37.09(a)(1), (c) (West Supp.
2022), 12.34 (West 2019).
Subsequently, the State filed a motion to adjudicate guilt in which it alleged that
Appellant violated certain terms and conditions of his community supervision. Specifically, the
State alleged that Appellant failed to report, possessed marijuana on seven occasions, used or
consumed marijuana on seven occasions, failed to submit to urinalyses on three occasions, failed
to satisfactorily perform community service restitution, and failed to submit to an alcohol and
drug treatment program as directed.
At a hearing on the motion, Appellant initially pleaded “true” to the allegations based on
his counsel’s representation that the State agreed to recommend a ten-month term of confinement
in the possession case and a four-year term of imprisonment in the tampering case. When the
State recommended twelve months instead of ten in the possession case, Appellant refused to
agree, and the trial court entered pleas of “not true” on his behalf.
Smith County probation officer Halie Smart testified that Appellant failed to report,
possessed marijuana, consumed marijuana, failed to submit to urinalyses, failed to perform
community service restitution, and failed to complete the alcohol and drug treatment program as
alleged. The trial court found the allegations “true” and revoked Appellant’s community
supervision. 3 The court assessed Appellant’s punishment at confinement for a term of fifteen
months in the possession case and imprisonment for a term of six years in the tampering case.
This appeal followed.

ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant’s counsel filed a brief in compliance with Anders v. California and Gainous v.
State. Appellant’s counsel relates that she thoroughly reviewed the entire record and found no
reversible error or jurisdictional defect. In compliance with High v. State, 573 S.W.2d 807, 812
(Tex. Crim. App. [Panel Op.] 1978), Appellant’s brief contains a professional evaluation of the
record demonstrating why there are no arguable grounds to be advanced. 4

3
The trial court did not orally pronounce that it found Appellant “guilty” but implied as much by hearing
the State’s evidence, finding the allegations “true,” and assessing his punishment. See Villela v. State, 564 S.W.2d
750, 751 (Tex. Crim. App. [Panel Op.] 1978).
4
In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief,
notified Appellant of the motion to withdraw as counsel, informed Appellant of his right to file a pro se response,
and took concrete measures to facilitate Appellant’s review of the appellate record. See Kelly v. State, 436 S.W.3d
313, 319 (Tex. Crim. App. 2014). Appellant was given time to file his own brief. The time for filing such a brief
has expired, and no pro se brief was filed.

2
We conducted an independent review of the record in this case and found no reversible
error. See id. We conclude that the appeal is wholly frivolous. See id.

CONCLUSION
As required by Anders and Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.
1991), Appellant’s counsel moved for leave to withdraw. See also In re Schulman, 252 S.W.3d
403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration
with the merits. Having done so and finding no reversible error, we grant counsel’s motion for
leave to withdraw and affirm the trial court’s judgments.
Appellant’s counsel has a duty to, within five days of the date of this opinion, send a
copy of the opinion and judgments to Appellant and advise him of his right to file a petition for
discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. Should
Appellant wish to seek review of this case by the Texas Court of Criminal Appeals, he must
either retain an attorney to file a petition for discretionary review on his behalf or he must file a
pro se petition for discretionary review. Any petition for discretionary review must be filed
within thirty days from either the date of this opinion or the date that the last timely motion for
rehearing was overruled by this court. See TEX. R. APP. P. 68.2(a). Any petition for
discretionary review must be filed with the Texas Court of Criminal Appeals. See TEX. R. APP.
P. 68.3(a). Any petition for discretionary review should comply with the requirements of Rule
68.4 of the Texas Rules of Appellate Procedure. See In re Schulman, 252 S.W.3d at 408 n.22.

Opinion delivered July 31, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

3
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 31, 2023

NO. 12-22-00295-CR

AUSTIN MARQUIS COLLINS,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0243-21)

THIS CAUSE came to be heard on the appellate record and brief filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, for which execution may issue, and that this
decision be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 31, 2023

NO. 12-22-00296-CR

AUSTIN MARQUIS COLLINS,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0242-21)

THIS CAUSE came to be heard on the appellate record and brief filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, for which execution may issue, and that this
decision be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.