Opinion issued April 8, 2010
In The
Court of Appeals
For The
First District of Texas
NOS. 01-08-00736-CR
& 01-09-00690-CR
JERIMIAH JAMES BERHARDT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 1111565
MEMORANDUM OPINION
On May 6, 2008, appellant, Jerimiah James Berhardt, entered a plea of guilty, without a recommended punishment, to aggravated sexual assault of a child. The trial court assessed punishment at 25 years’ imprisonment. Appellant appealed his conviction, but his appointed counsel filed an Anders brief. Appellant filed a pro se response contending that arguable grounds for appeal exist.
BACKGROUND
On May 1, 2007, the State indicted appellant for aggravated sexual assault of his niece, age 12, claiming that he “intentionally and knowingly cause[d] the anus of [the complainant], a person younger than fourteen years of age and not the spouse of the Defendant, to contact the SEXUAL ORGAN of THE DEFENDANT.” Appellant retained his own counsel, Linda G. Cryer, to represent him. Cryer represented appellant for several months before filing a motion requesting permission to withdraw from the case. The trial court granted the motion. On April 9, 2008, appellant petitioned the trial court to appoint counsel, and the court appointed Randy Duarte to represent appellant. On May 6, 2008, appellant entered a plea of guilty without a recommended punishment. In the plea hearing, appellant acknowledged that “there has been no agreed recommendation [as to punishment]” and that “upon a finding of guilt, [he] could be sentenced to any time [within the punishment range of 5 years to 99 years].” The court delayed appellant’s sentencing hearing pending the completion of a pre-sentence investigation. On August 27, 2008, the court held appellant’s sentencing hearing. During its closing statement at the sentencing hearing, the State asked the court to sentence appellant to 25 years in the penitentiary. Appellant did not object, and the trial court assessed his punishment at 25 years’ imprisonment. The trial court certified appellant’s right to appeal, indicating that this was not a plea bargain case.
The trial court appointed appellate counsel. Appellant filed a motion for a new trial on September 26, 2008, claiming ineffective assistance of counsel. On December 10, 2008, the trial court conducted a hearing on appellant’s motion for new trial and denied it. Appellant’s counsel has filed an Anders brief, and appellant has filed a pro se brief alleging that the prosecution breached its plea-bargain agreement with him. ANALYSIS
Upon receipt of a motion to withdraw and a brief from an appellant’s court-appointed attorney asserting that no arguable grounds for reversal on appeal exist, we must determine that issue independently by conducting our own review of the entire record. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967) (emphasizing that reviewing court—and not appointed counsel—determines, after full examination of proceedings, whether case is “wholly frivolous”); Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991) (quoting Anders). In conducting our review, we consider any pro se response to appointed counsel’s Anders brief that appellant files. See Bledsoe v. State, 178 S.W.3d 824, 826–28 (Tex. Crim. App. 2005).
Our role in an Anders case is limited to determining whether arguable grounds for appeal exist. See id. at 826–27. We do not rule on the ultimate merits of the issues raised by an appellant in his pro se response. Id. at 827. If we determine that arguable grounds for appeal exist, we must allow the court-appointed attorney to withdraw, abate the appeal, and remand the case to the trial court. See id. at 827. The trial court must then either appoint another attorney to present all arguable grounds for appeal or, if the appellant wishes, allow him to proceed pro se in the appellate court. 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 indicate that we have reviewed the record and have found no arguable grounds for appeal. See id. at 826–28.
Appellant contends that the State breached its plea agreement with him because, during the State’s closing statement in his sentencing hearing, the State requested that appellant receive 25 years’ imprisonment. However, the record clearly demonstrates that there was no agreed punishment recommendation and that there was no agreement that the State would not recommend a punishment to the court. Indeed, the trial court certified that appellant had the right to appeal precisely because it was not a plea bargain case with an agreed punishment recommendation. See Tex. R. App. P. 25.2(a)(2); Moore v. State, 295 S.W.3d 329, 332–33 (Tex. Crim. App. 2009) (indicating that plea bargains and open pleas are distinct). Appellant’s reliance on Santobello v. New York is unjustified. See 404 U.S. 257, 262, 92 S. Ct. 495, 499 (1971) (“[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”).
In accordance with Anders and Bledsoe, we have reviewed the entire 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 reversal exist.
CONCLUSION
We deny appellant’s petition for writ of mandamus, cause number 01-09-00690-CR, and we affirm the judgment of the trial court in cause number 01-08-00736-CR and grant appointed counsel’s motion to withdraw. Appointed counsel still has a duty to inform appellant of the result of this appeal and to inform appellant that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 826–27.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Sharp, and Massengale.
Do not publish. Tex. R. App. P. 47.2(b).