IN THE
TENTH COURT OF APPEALS
No. 10-08-00390-CR
ROBERT ALLEN BYRD,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2007-568-C2
MEMORANDUM OPINION
Robert Allen Byrd was convicted by a jury of capital murder. TEX. PEN. CODE
ANN. § 19.03(a)(2) (Vernon 2003). The murder was alleged to have been committed in
the course of committing or attempting to commit kidnapping. TEX. PEN. CODE ANN. §
19.03(a)(2). Because the State did not seek the death penalty, Byrd was mandatorily
assessed punishment at imprisonment for life without parole in the Texas Department
of Criminal Justice – Institutional Division. TEX. PEN. CODE ANN. § 12.31(a) (Vernon
2003). We affirm.
Byrd's appellate counsel filed an Anders brief and a motion to withdraw as
counsel. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
Counsel concludes that the appeal is frivolous.
Byrd has filed a pro se brief. However, we review Byrd’s brief solely to determine
if there are any arguable grounds for appeal. Bledsoe v. State, 178 S.W.3d 824, 827 (Tex.
Crim. App. 2005). See also In re Schulman, 252 S.W.3d 403, 409 n. 23 (Tex. Crim. App.
2008).
Counsel's brief evidences a professional evaluation of the record for error, and
we conclude that counsel performed the duties required of appointed counsel. See
Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also
In re Schulman, 252 S.W.3d at 407.
In reviewing an Anders appeal, we must, "after a full examination of all the
proceedings, . . . decide whether the case is wholly frivolous." Anders at 744; accord
Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991); Coronado v. State, 996
S.W.2d 283, 285 (Tex. App.--Waco 1999, order) (per curiam), disp. on merits, 25 S.W.3d
806 (Tex. App.--Waco 2000, pet. ref'd). An appeal is "wholly frivolous" or "without
merit" when it "lacks any basis in law or fact." McCoy v. Court of Appeals , 486 U.S. 429,
439 n.10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988). Arguments are frivolous when they
"cannot conceivably persuade the court." McCoy, 486 U.S. at 436. An appeal is not
wholly frivolous when it is based on "arguable grounds." Stafford, 813 S.W.2d at 511.
Robert Allen Byrd v. The State of Texas Page 2
After a review of the briefs and the entire record in this appeal, we determine the
appeal to be wholly frivolous. See Bledsoe v. State, 178 S.W.3d at 826-27. Accordingly, we
affirm the trial court's judgment.
Should Byrd wish to seek further review of this case by the Texas Court of
Criminal Appeals, Byrd must either retain an attorney to file a petition for discretionary
review or Byrd must file a pro se petition for discretionary review. Any petition for
discretionary review must be filed within thirty days from the date of either this
opinion or the last timely motion for rehearing that was overruled by this Court. See
TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with this Court,
after which it will be forwarded to the Texas Court of Criminal Appeals along with the
rest of the filings in this case. See TEX. R. APP. P. 68.3. Any petition for discretionary
review should comply with the requirements of Rule 68.4 of the Texas Rules of
Appellate Procedure. See TEX. R. APP. P. 68.4. See also In re Schulman, 252 S.W.3d 403, 409
n.22 (Tex. Crim. App. 2008) (citing Glover v. State, No. 06-07-00060-CR, 2007 Tex. App.
LEXIS 9162 (Tex. App.—Texarkana, Nov. 20, 2007, pet. ref’d) (not designated for
publication).1
Counsel's request that he be allowed to withdraw from representation of Byrd is
granted. Additionally, counsel must send Byrd a copy of our decision, notify Byrd of
his right to file a pro se petition for discretionary review, and send this Court a letter
1We note that counsel has an affirmative duty to ensure that the client has, at some point, been informed
of his right to file a pro se PDR. The preferred mechanism for this is a letter sent to the client with the
Anders brief and the motion to withdraw as counsel. In re Schulman, 252 S.W.3d 403, 408 n. 22 (Tex. Crim.
App. 2008).
Robert Allen Byrd v. The State of Texas Page 3
certifying counsel’s compliance with Texas Rule of Appellate Procedure 48.4. TEX. R.
APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 409 n. 22.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed September 23, 2009
Do not publish
[CRPM]
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