Opinion issued June 21, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00101-CR
GREGORY HARDY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1050571
MEMORANDUM OPINION
Appellant, Gregory Hardy, was charged by indictment with the offense of arson, (1) enhanced by two prior felony convictions--one for burglary of a habitation and one for robbery. Appellant pleaded not guilty to the primary offense and pleaded true to the enhancements. A jury found appellant guilty as charged in the primary offense and found the enhancement paragraphs "true." The trial court assessed punishment at 65 years' confinement.
On appeal, appellant's court-appointed counsel filed a motion to withdraw and filed an Anders brief stating that she has not found arguable grounds for appeal. (2) Appellant filed a pro se response, asserting five issues that he believed constituted arguable grounds for appeal: (1) the trial court lacked jurisdiction to assess punishment; (2) his counsel was ineffective for refusing to file a petition for discretionary review to the Texas Court of Criminal Appeals; (3) the evidence to support his conviction was legally and factually insufficient; (4) the State engaged in prosecutorial misconduct because it "manipulated two . . . children into committing perjury"; and (5) the trial court abused its discretion by sentencing him.
We conclude that appellant has not raised arguable grounds for appeal, we affirm, and we grant appellant's counsel's motion to withdraw.
Anders Procedure
Under Anders, when court-appointed counsel files a motion to withdraw and files a brief in which she concludes that there are no arguable grounds for appeal, we review the record and make an independent determination. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967); Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005); Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.--Houston [1st Dist.] 2006, no pet.). We consider any pro se response appellant may file to the Anders brief, but we do not rule on the ultimate merits of his response. Bledsoe, 178 S.W.3d at 826-27; Mitchell, 193 S.W.3d at 156. If we determine from our independent review of the entire record that the appeal is wholly frivolous, we may affirm the trial court's judgment by issuing an opinion in which we explain that we have reviewed the record and have found no reversible error. Bledsoe, 178 S.W.3d at 826-27; Mitchell, 193 S.W.3d at 156. If we find arguable grounds for appeal, we abate the appeal, remand the case to the trial court, and allow the court-appointed attorney to withdraw. Bledsoe, 178 S.W.3d at 827; Mitchell, 193 S.W.3d at 156. The trial court then must either appoint another attorney to present all arguable grounds for appeal or allow the defendant to proceed pro se if he desires. Bledsoe, 178 S.W.3d at 827; Mitchell, 193 S.W.3d at 156.
Analysis
Here, appellant's counsel filed a brief stating that she has diligently reviewed the record and that, in her opinion, the appeal is wholly without merit. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell, 193 S.W.3d at 154. In her brief, counsel presented a professional evaluation of the record and explained why there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811-12 (Tex. Crim. App. 1978); Mitchell, 193 S.W.3d at 155-56). In accordance with Anders and Bledsoe, we have reviewed counsel's brief and appellant's pro se response, and we have conducted an independent examination of the record. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Bledsoe, 178 S.W.2d 826-27; Mitchell, 193 S.W.3d at 155-56. We conclude that no reversible error exists.
Conclusion We affirm the judgment of the trial court and grant appellant's counsel's motion to withdraw. (3)
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Keyes and Higley.
Do not publish. Tex. R. App. P. 47.2(b).
1. 1 See Tex. Pen. Code Ann. § 28.02 (Vernon Supp. 2006).
2. 2 3. 3