Opinion issued January 25, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00852-CR
OMAR CASTILLO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Cause No. 877578
MEMORANDUM OPINION
Appellant Omar Castillo was convicted by a jury of the first-degree felony offense of aggravated robbery. Tex. Pen. Code Ann. §§ 29.02, 29.03 (Vernon 2003). The trial court assessed punishment at twenty years’ confinement. In 2003, Castillo’s counsel on appeal submitted a brief pursuant to Anders v. California, stating his professional opinion that the appeal is without merit and that there are no arguable grounds for reversal. 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). We affirmed Castillo’s conviction and granted counsel’s motion to withdraw. Castillo v. State, No. 01-02-00852-CR, 2004 WL 396373, at *1 (Tex. App.—Houston [1st Dist.] Mar. 4, 2004, no pet.) (not designated for publication).
The Texas Court of Criminal Appeals, thereafter, granted Castillo’s post-conviction application for writ of habeas corpus because Castillo’s counsel did not comply with the requirements of Anders in failing to mail Castillo a copy of the Anders brief. Ex parte Castillo, No. AP-75424, 2006 WL 1410760, at *1 (Tex. Crim. App. May 24, 2006) (not designated for publication); see also Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). The Court of Criminal Appeals granted Castillo the right to file an out-of-time pro se appellate brief in this court. Ex parte Castillo, 2006 WL 1410760, at *1. Castillo has now filed a pro se brief. In three issues, Castillo contends (1) the trial court erred in admitting the knife used to commit the aggravated robbery into evidence, (2) the evidence is legally insufficient to support the theft element of aggravated robbery, and (3) the evidence is legally and factually insufficient to support the deadly weapon element of aggravated robbery. We have reviewed the record and, having found no reversible error, we affirm Castillo’s conviction.
Background
In May 2001, Victor Duarte purchased a lottery ticket from Jose Cavazos, a manager at a Fiesta liquor store. Duarte then walked out of the store and began scratching off the ticket. Castillo and another man approached Duarte while he was standing outside the store. Castillo put his arm around Duarte’s neck, held a knife to his back, and said, “Give me all your money.” Castillo took thirty dollars from Duarte’s wallet and gave it to his accomplice, who then ran across the street. Castillo also took Duarte’s cellular telephone. Cavazos came out of the liquor store with some trash and noticed that Duarte was being robbed. Cavazos grabbed Castillo by the back of his shirt and pulled him to the ground. Castillo then got up with the knife and cellular telephone, and ran away. Cavazos gave chase but halted when Castillo threatened him with his knife.
Cavazos called a security guard and gave him a description of Castillo and his accomplice. The security guard went to the back of the store to look for Castillo. Duarte also walked to the back of the store and when he arrived, he saw the security guard putting handcuffs on Castillo. The security guard told Duarte that Castillo was trying to climb a fence behind the store, but surrendered when he was unsuccessful. The security guard searched Castillo and returned the cellular telephone to Duarte. The security guard gave Castillo’s knife to Houston Police Officer W. Purser, who arrived a few minutes later.
Anders Procedure
The brief submitted by Castillo’s court-appointed counsel states his professional opinion that there are no arguable grounds for reversal on appeal and that any appeal would, therefore, lack merit. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Counsel’s brief meets the minimum Anders requirements by presenting a professional evaluation of the record and stating why there are no arguable grounds for reversal on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). The State waived its opportunity to file a reply to the arguments presented in Castillo’s pro se response.
When we receive an Anders brief from a defendant’s court-appointed attorney who asserts that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—determines, after full examination of proceedings, whether case is “wholly frivolous”); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). In conducting our review, we consider any pro se response that the defendant files to his appointed counsel’s Anders brief. See Bledsoe v. State, 178 S.W.3d 824, 826–28 (Tex. Crim. App. 2005).
Our role in this Anders appeal, which includes reviewing the pro se response by Castillo, is limited to determining whether arguable grounds for appeal exist. See id. at 827. If we determine that arguable grounds for appeal exist, we abate the appeal and remand the case to the trial court to allow the court-appointed attorney to withdraw. See id. The trial court then either appoints another attorney to present all arguable grounds for appeal or, if the defendant wishes, allows the defendant to proceed pro se. See id. We do not rule on the ultimate merits of the issues raised by Castillo in his pro se response. See id. If we determine that there are arguable grounds for appeal, Castillo is entitled to have new counsel address the merits of the issues raised. See id. “Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised.” Id.
If, on the other hand, 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. See id. at 826–28. The holding that there are no arguable grounds for appeal is subject to challenge by Castillo by a petition for discretionary review filed in the Court of Criminal Appeals. Id. at 827 & n.6.
In accordance with Anders and Bledsoe, we have reviewed the record, Castillo’s appointed counsel’s Anders brief, and Castillo’s pro se response to that brief and conclude that no reversible error exists. Having reached that conclusion, we affirm the judgment of the trial court.[1]
Conclusion
We affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
Do not publish. Tex. R. App. P. 47.2(b).
[1] The clerk of this court has a duty to inform Castillo of the result of this appeal and that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 827 & n.6 (Tex. Crim. App. 2005); Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997); Stephens v. State, 35 S.W.3d 770, 771–72 (Tex. App.—Houston [1st Dist.] 2000, no pet.).