NUMBER 13-26-00156-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
EMILY ANN HUTCHINS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 432ND DISTRICT COURT
OF TARRANT COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Tijerina and Justices Silva and Cron
Memorandum Opinion by Chief Justice Tijerina
Pursuant to a charge bargain with the State 1 , appellant Emily Ann Hutchins
pleaded guilty to the first-degree felony offense of aggravated promotion of prostitution
1 “Charge bargaining . . . involves questions of whether a defendant ‘will plead guilty to the offense
that has been alleged or to a lesser or related offenses, and of whether the prosecutor will dismiss, or refrain from bringing, other charges.’” Thomas v. State, 516 S.W.3d 498, 502 (Tex. Crim. App. 2017) (quoting Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003)).
without a sentencing recommendation from the State, and the State dismissed other
charges against her. 2 See TEX. PENAL CODE § 43.04(b). After holding a contested
sentencing hearing, the trial court sentenced appellant to thirty years’ incarceration.
Appellant’s court-appointed counsel has filed an Anders brief stating that there are no
arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). We
affirm the trial court’s judgment.3
I. ANDERS BRIEF
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
filed a brief and a motion to withdraw with this Court stating that his review of the record
yielded no grounds of reversible error upon which an appeal could be predicated. See id.
2 This appeal was transferred to this Court from the Second Court of Appeals pursuant to a docketequalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE § 73.001.
3 We note that appellant’s counsel states that the Court lacks jurisdiction over this appeal because
appellant entered a charge agreement with the State and waived her right to appeal. A presentence waiver of the right to appeal is unenforceable if the punishment is unknown when the waiver was signed and there is nothing in the record showing that the waiver was part of the plea agreement. Ex parte Delaney, 207 S.W.3d 794, 798 (Tex. Crim. App. 2006) (“When a presentencing waiver of appeal was not bargained for in exchange for an agreed upon sentence, concerns as to the validity of the waiver are raised. This concern led us to conclude in [prior opinions] that presentencing waivers are not binding because they cannot be made knowingly, voluntarily, and intelligently.”); cf. Blanco v. State, 18 S.W.3d 218, 219 (Tex. Crim. App. 2000) (determining that the waiver of appeal was valid because the defendant and the State agreed to the imposed sentence and therefore the defendant was aware of the consequences of waiving his appeal).
Here, appellant waived a record of the plea hearing and signed a boilerplate waiver of her right to appeal prior to being sentenced by the trial court. In addition, there was no agreement as to a sentence, and there is nothing in the record showing that appellant waived her right to an appeal pursuant to her agreement with the State. At the sentencing hearing appellant agreed “to go open to the Court without a [sentencing] recommendation from the State.” Therefore, we conclude that appellant’s presentence waiver of the right to appeal is unenforceable as the punishment was unknown when the waiver was signed and there is nothing in the record showing that the waiver was part of the charge bargain; thus, we cannot conclude the waiver was knowing and intelligent when made. See Ex parte Delaney, 207 S.W.3d at 798 (“When the punishment that may be assessed if guilt is adjudicated is not certain, the validity of a pretrial waiver of appeal is in question because the waiver cannot be knowing and intelligent when potential errors cannot be anticipated and the consequences of the waiver are unknown.”). Appellant has the right to appeal, and we have jurisdiction over appellant’s appeal. See id. (“Because his waiver was not knowing and intelligent concerning the punishment phase of trial, Applicant’s pretrial waiver of appeal does not prevent appeals from his sentence.”).
2
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, 406 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“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–Edinburg 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) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014),
appellant’s counsel carefully discussed why, under controlling authority, there is no
reversible error in the trial court’s judgment. Appellant’s counsel also informed this Court
in writing that he: (1) notified appellant that counsel has filed an Anders brief and a motion
to withdraw; (2) provided appellant with copies of both pleadings; (3) informed appellant
of her rights to file a pro se response, to review the record prior to filing that response,
and to seek discretionary review if we conclude that the appeal is frivolous; and
(4) provided appellant with a form motion for pro se access to the appellate record that
only requires appellant’s signature and date with instructions to file the motion within ten
days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20; see also In re
Schulman, 252 S.W.3d at 408–09. Appellant did not file a pro se response.4
4 Appellant filed a motion for access to the appellate record, which was sent to her.
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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 record and counsel’s brief, and we 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 requirements of Texas Rule
of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 511.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s counsel has asked this Court for
permission to withdraw as counsel. See Anders, 386 U.S. at 744; see also In re
Schulman, 252 S.W.3d at 408 n.17. We grant counsel’s motion to withdraw. Within five
days from 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 her of her right to file a petition for
discretionary review.5 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).
5 No substitute counsel will be appointed. Should appellant wish to seek further review of this case
by the Texas Court of Criminal Appeals, she 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 or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the Clerk of the Texas Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4.
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IV. CONCLUSION
We affirm the trial court’s judgment.
JAIME TIJERINA
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
25th day of June, 2026.
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