Opinion issued May 20, 2010
In The
Court of Appeals
For The
First District of Texas
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NO. 01-07-01073-CR
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DERRICK DEWAINE LEE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1109989
MEMORANDUM OPINION
A jury found appellant, Derrick Dewaine Lee, guilty of aggravated robbery, see Tex. Penal Code Ann. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2003), and assessed punishment at 27 years in prison. Based on the language of the indictment and the jury’s guilty finding, the trial court included a deadly-weapon finding in the judgment.
Appellant’s court-appointed counsel has filed an Anders brief in which she states that there are no arguable grounds to support an appeal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant filed a pro se response to his counsel’s Anders brief in which he asserts that he did not rob the complainant and that the evidence did not show that he used or exhibited a deadly weapon, namely, a firearm, as alleged in the indictment.
We affirm.
ANDERS PROCEDURE
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 id. (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 is limited to determining whether arguable grounds for appeal exist. See id. 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. See 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. See id. We do not rule on the ultimate merits of the issues raised by appellant in his pro se response. See 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. 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 an 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 826–27. While this Court may issue an opinion explaining why the appeal lacks arguable merit, we are not required to do so. See Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009). An appellant may challenge a holding that there are no arguable grounds for appeal by filing a petition for discretionary review in the Court of Criminal Appeals. See Bledsoe, 178 S.W.3d 827 & n. 6.
Analysis
In this case, the brief filed by appellant’s counsel 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). Appellant’s counsel indicates that she has thoroughly reviewed the record. Based on this review, counsel states that she “is unable to find any errors which she, in good faith, can urge warranting a reversal of this conviction. Counsel is aware that she had a duty to advance arguable grounds of error.” See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 154 (Tex. App.—Houston [1st Dist.] 2006, no pet.). In her Anders brief, counsel discusses the evidence adduced at the trial, supplies us with references to the record, and provides us with citation to legal authorities. Cf. High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. 1978). The brief also reflects that counsel delivered a copy of the brief to appellant and informed him of his right to file a response, which he has done. See Stafford, 813 S.W.2d at 510.
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. Based on this review, we conclude that no reversible error exists in the record and that the appeal is wholly frivolous.
CONCLUSION
We affirm the judgment of the trial court and grant appointed counsel’s motion to withdraw.[1]
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Alcala and Higley.
Do not publish. Tex. R. App. P. 47.2(b).
[1] Appointed counsel has a duty to inform appellant 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.).