Donald R. Pease v. State

NO. 07-08-0184-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

MARCH 13, 2009

______________________________

DONALD R. PEASE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2007-415,574; HONORABLE CECIL G. PURYEAR, JUDGE

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

Following a plea of not guilty, Appellant, Donald R. Pease, was convicted by a jury of aggravated robbery with an affirmative finding on use of a deadly weapon and sentenced to twenty-eight years confinement.   In presenting this appeal, counsel has filed an Anders (footnote: 1) brief in support of a motion to withdraw.  We grant counsel’s motion and affirm.

In support of his motion to withdraw, counsel certifies he has conducted a conscientious examination of the record and, in his opinion, the record reflects no potentially plausible basis to support an appeal.   Anders v. California , 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman , 252 S.W.3d 403, 406 (Tex.Crim.App. 2008) . Counsel has candidly discussed why, under the controlling authorities, the appeal is frivolous.   See High v. State , 573 S.W.2d 807, 813 (Tex.Crim.App. 1978).  Counsel has also demonstrated that he has complied with the requirements of Anders and In re Schulman by (1) providing a copy of the brief to Appellant, (2) notifying him of his right to file a pro se response if he desired to do so, and (3) informing him of his right to file a pro se petition for discretionary review .   In re Schulman , 252 S.W.3d at 408. (footnote: 2)  By letter, this Court granted Appellant thirty days in which to exercise his right to file a response to counsel’s brief, should he be so inclined.   Id. at n.23.  Appellant did not file a response.  Neither did the State favor us with a brief.

Potential Issues

By the Anders brief, counsel raises three potential issues, to-wit: (1) the evidence was legally insufficient to support Appellant’s conviction; (2) the evidence was factually insufficient to support Appellant’s conviction; and (3) the non-accomplice evidence was insufficient to corroborate the testimony of Clifford Johnson, Appellant’s co-actor.  Counsel then explains why the issues have no merit.  

We have independently examined the entire record to determine whether there are any non-frivolous issues which might support the appeal.   See Penson v. Ohio , 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re Schulman , 252 S.W.3d at 409; Stafford v. State , 813 S.W.2d 503, 511 (Tex.Crim.App. 1991).  We have found no such issues.   See Gainous v. State , 436 S.W.2d 137 (Tex.Crim.App. 1969).  After reviewing the record and counsel’s brief, we agree with counsel that there are no plausible grounds for appeal. See Bledsoe v. State , 178 S.W.3d 824 (Tex.Crim.App. 2005).

Accordingly, counsel's motion to withdraw is granted and the trial court’s judgment is affirmed.

Patrick A. Pirtle

     Justice

  

Do not publish.

FOOTNOTES

1:

Anders v. California , 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

2:

Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary review upon execution of the Trial Court’s Certification of Defendant’s Right of Appeal , counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together with notification of his right to file a pro se petition for discretionary review.   In re Schulman , at 408 fn.22 & at 411 fn.35.