Opinion issued October 29, 2009
In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-08-0873-CR
____________
KEVIN RICARDO DORSEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 988310
MEMORANDUM OPINION
Appellant, Kevin Ricardo Dorsey, was indicted for the first-degree offense of aggravated assault on a “household member.” On April 11, 2005, appellant pleaded guilty, before the trial court, to the second-degree offense of aggravated assault, the State having dropped the “household member” language. There was no agreed recommendation on punishment. The trial court made no finding of guilt at that hearing, and the case was recessed for the completion of a pre-sentence investigation report. The case resumed on July 27, 2005. After hearing testimony and receiving evidence from both the State and the defense, the trial court found appellant guilty of the offense of aggravated assault, made an affirmative deadly weapon finding, and assessed appellant’s punishment at fifteen years incarceration.
No timely motion for new trial or notice of appeal was filed. Appellant filed a post-conviction petition for writ of habeas corpus, seeking to pursue an appeal, and the Texas Court of Criminal Appeals ultimately granted appellant an out-of-time appeal, finding that appellant was deprived of his meaningful right to direct appeal through no fault of either counsel or appellant. On October 8, 2005, appellant filed a notice of appeal. He did not file a motion for new trial. We affirm.
Appellant’s attorney on appeal has filed an Anders brief stating that, in her professional opinion, the record does not contain any arguable grounds for appeal and that any appeal would, therefore, lack merit. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). The brief meets the requirements of Anders by presenting a professional evaluation of the record and detailing why there are no arguable grounds for reversal. Id. at 744, 87 S. Ct. at 1400. Appellant’s counsel has, in accordance with Anders procedures, filed a motion to withdraw. Counsel represents that she has served a copy of the brief to appellant and advised appellant of his right to examine the appellate record and file a pro se brief. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). Appellant filed a pro se response, however, it did not raise any issues of law.
When this Court receives an Anders brief, we evaluate the appeal by conducting an independent review of the entire record. Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Our responsibility is not “to review the merits of each claim raised” but simply to “determine whether there are any arguable grounds” upon which counsel could ethically base an appeal. Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005). An arguable ground for appeal is a ground that is not frivolous; it must be an argument that could “conceivably persuade the court.” In re Schulman, 252 S.W.3d 403, 407 n.12 (Tex. Crim. App. 2008) (quoting McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 108 S. Ct. 1895, 1901 (1988)). If after reviewing the entire record, we conclude that an appeal would be frivolous, we may affirm the trial court by issuing an opinion in which we explain that we found no arguable grounds upon which to base an appeal. See Bledsoe, 178 S.W.3d at 826–28.
In accordance with Anders, 386 U.S. at 744–45, 87 S. Ct. at 1400, and Bledsoe, 178 S.W.3d at 826–27, we have reviewed the entire record, counsel’s Anders brief, and appellant’s pro se response. We conclude that no arguable ground for reversible error exists. Having reached that conclusion, we affirm the lower court and grant appellant’s appointed counsel’s motion to withdraw.
Conclusion
We affirm the judgment of the trial court and grant counsel’s motion to withdraw.
Jim Sharp
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
Do not publish. Tex. R. App. P. 47.2(b).