Opinion Issued February 19, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00301-CR
DENISE SWASING SPILLER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 1131886
MEMORANDUM OPINION
Appellant, Denise Swasing Spiller, was convicted of the offense of aggravated perjury. Tex. Penal Code Ann. § 37.03 (Vernon 2003). A jury assessed punishment at ten years’ community supervision. Spiller’s court-appointed appellate counsel filed a motion to withdraw along with a brief stating his professional opinion that the appeal is without merit and that there are no arguable grounds for reversal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Spiller failed to file a pro se response. We have reviewed the record in its entirety and, having found no reversible error, we grant counsel’s motion to withdraw and affirm Spiller’s conviction.
Background
Spiller’s husband, Eric Spiller, a former Harris County Constable, was tried and convicted of sexual assault of a child. Employees of the Harris County District Attorney’s office interviewed Spiller on September 7, 2006. This interview occurred two weeks prior to her husband’s trial, in which she was subpoenaed to testify. The meeting was voluntary, and Spiller was not a suspect in her husband’s crime. The interview was recorded on video without Spiller’s knowledge, which is common practice within the District Attorney’s office. The interviewer asked questions about Spiller’s husband and his conduct with the complainant. Spiller asserted in this interview that she was not aware of her husband’s activities. In response to the interviewer’s question, she denied that she had visited a particular motel with her husband in April 2005. The State entered into evidence and published the video recording of the interview to the jury.
Two weeks after her interview at the District Attorney’s office, Spiller testified in her husband’s first trial for the offense of sexual assault of a child. Contrary to her statements in the investigative interview, Spiller testified that she did accompany her husband to the motel. The first trial ended in a hung jury. Spiller’s contradictory testimony lead to her indictment for the offense of aggravated perjury in August 2007. Her husband was convicted in a second trial in January 2008. Spiller did not testify in the second trial.
Discussion
The brief submitted by Spiller’s court-appointed appellate counsel states his professional opinion that no arguable grounds for reversal exist, and any appeal would, therefore, lack merit. Anders, 386 U.S. 738, 744, 87 S. Ct. 1396. 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). Counsel sent a copy of the brief to Spiller, requested permission to withdraw from the case, and notified Spiller of her right to review the record and file a pro se response. Spiller did not file a 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 the reviewing court—and not counsel—determines, after full examination of proceedings, whether a case is “wholly frivolous”); Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). Any pro se response would also be considered; however, Spiller has failed to file any such response. See Bledsoe v. State, 178 S.W.3d 824, 826–28 (Tex. Crim. App. 2005).
Thus, our role in this Anders appeal, which consists of reviewing the entire record, 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. Then, the trial court appoints another attorney to present all arguable grounds for appeal. See id. If we determine that arguable grounds for appeal do exist, Spiller 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.
On the other hand, if our independent review of the record leads us to conclude 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 find no reversible error. Bledsoe, 178 S.W.3d at 826–28. Spiller may challenge the holding that there are no arguable grounds for appeal by petitioning for discretionary review in the Court of Criminal Appeals. Id. at 827 & n.6.
Following Anders and Bledsoe, we have reviewed the record and counsel’s Anders brief. We conclude that no reversible error exists. Consequently, we affirm the judgment of the trial court and grant counsel’s motion to withdraw.[1]
Conclusion
We affirm the judgment of the trial court and grant appointed counsel’s motion to withdraw.
Jane Bland
Justice
Panel consists of Judges Taft, Bland, and Sharp.
Do not publish. Tex. R. App. P. 47.2(b).
[1] Appointed counsel still has a duty to inform appellant of the result of this appeal, send appellant a copy of this opinion and judgment, and notify appellant that she may, on her own, pursue discretionary review in the Court of Criminal Appeals. Tex. R. App. P. 48.4; see also Bledsoe v. State, 178 S.W.3d 824, 827 (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.).