In The
Court of Appeals
For The
First District of Texas
____________
NOS. 01-08-00460-CR
01-09-00645-CR
01-09-00646-CR
____________
JOSHUA TYRONE LANE, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Cause No. 54,972
MEMORANDUM OPINION
Appellant, Joshua Tyrone Lane, appeals from a judgment sentencing him to life in prison for the murder of Bobby Dollarhide in appellate cause number 01-08-00460-CR, which was count one in trial court cause number 54,972; 20 years for the aggravated robbery of Bobby Dollarhide in appellate cause number 01-09-00645-CR, which was count two in trial court cause number 54,972; and 20 years for the aggravated robbery of Surasuk Archnoi in appellate cause number 01-09-00646-CR, which was count three in trial court cause number 54,972. See Tex. Penal Code Ann. §§ 19.02, 29.03 (Vernon 2003). Appellant pleaded not guilty to the three offenses, which were tried before a single jury. The jury found appellant guilty and assessed his punishment. Appellant's court-appointed counsel has filed a motion to withdraw from representing appellant along with an Anders brief in which he states that no valid grounds for appeal exist and that appellant's appeal is frivolous. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant's pro se response challenges his appellate counsel's recommendation and presents three issues, challenging the legal and factual sufficiency of the evidence and contending that the trial court erred by denying his request for a lesser jury instruction of manslaughter. We affirm.
Background
On August 18, 2007, Surasuk Lex Archnoi and the deceased, Bobby Dollarhide, contacted appellant to purchase a controlled substance. Appellant and two other men, known as Renzo and Goodjoint, drove from appellant's house to meet Dollarhide at a motel room to complete the sale. Upon arriving, appellant entered the motel room, and Renzo and Goodjoint remained in the car. Inside the motel room, Archnoi, Dollarhide and appellant disagreed over the amount of drugs to be delivered for the price.
Appellant left the motel room and returned with Renzo and Goodjoint. Upon returning, Renzo struck Archnoi in the head with a shotgun. Appellant demanded money from Archnoi. After Archnoi gave appellant his wallet, appellant shot Archnoi in the leg. Appellant then demanded money from Dollarhide while Renzo struck Dollarhide in the head with his shotgun. After receiving Dollarhide's wallet, appellant shot Dollarhide. According to Archnoi, appellant shot Dollarhide in the head. The medical examiner, however, found gunshot wounds on Dollarhide's hand and abdomen only. Renzo and Goodjoint then ran from the motel room and drove away.
At trial, appellant testified that he did not intend to rob or to cause harm to Dollarhide or Archnoi, and was surprised when Renzo hit Archnoi with the shotgun. Appellant further testified that he pulled his pistol out for protection because he feared that Dollarhide would injure him after Renzo struck Archnoi with the shotgun. Appellant testified that he shot both Archnoi and Dollarhide in self-defense after they moved toward him, not intending to kill Dollarhide but only to harm Dollarhide to slow him down.
Anders Procedure
The brief submitted by appellant'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 has waived its opportunity to file an appellee's brief to reply to the arguments presented in appellant'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. 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 a pro se response by appellant, is limited to determining whether arguable grounds for appeal exist. Bledsoe, 178 S.W.3d at 827. If we determine that arguable grounds for appeal exist, we must abate the appeal and remand the case to the trial court to allow the court-appointed attorney to withdraw. Id. The trial court must then either appoint another attorney to present all arguable grounds for appeal or, if the defendant wishes, allow the defendant to proceed pro se. Id. We do not rule on the ultimate merits of the issues raised by appellant in his pro se response. Id. If we determine that there are arguable grounds for appeal, appellant is entitled to have new counsel address the merits of the issues raised. 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, 828. The holding that there are no arguable grounds for appeal is subject to challenge by an appellant 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, appellant's appointed counsel's Anders brief, and appellant's pro se response to that brief, and we conclude that no arguable grounds for appeal exist. Anders, 386 U.S. at 744-45, 87 S. Ct. at 1400; Bledsoe, 178 S.W.3d at 826-27. Having reached that conclusion, we affirm the judgment of the trial court and grant appellant's appointed counsel's motion to withdraw. (1)
Conclusion
We affirm the judgment of the trial court and grant appointed counsel's motion to withdraw.
Elsa Alcala
Justice
Panel consists of Justices Keyes, Alcala, and Hanks.
Do not publish. Tex. R. App. P. 44.2(b).
1.