IN THE
TENTH COURT OF APPEALS
No. 10-08-00180-CR
JAMES EARL BROWN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2007-1993-C2
MEMORANDUM OPINION
James Earl Brown was convicted of delivery of cocaine. TEX. HEALTH & SAFETY
CODE ANN. § 481.112(b) (Vernon 2003). At punishment, Brown pled true to two
enhancements and was sentenced to 20 years in prison. We affirm.
Brown's appellate counsel filed an Anders brief and a motion to withdraw as
counsel.1 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.
1 Counsel has been allowed to withdraw in a separate order.
Brown was informed of the right to file a pro se brief or other response, and
Brown has filed one. However, we review Brown’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.
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 Brown wish to seek further review of this case by the Texas Court of
Criminal Appeals, Brown must either retain an attorney to file a petition for
Brown v. State Page 2
discretionary review or Brown 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 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)).
Although Counsel has been allowed to withdraw, he must, nevertheless, send
Brown a copy of our decision, notify Brown of his right to file a pro se petition for
discretionary review, and send this Court a letter certifying counsel’s compliance with
Texas Rule of Appellate Procedure 48.4. TEX. R. APP. P. 48.4; see 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 August 5, 2009
Do not publish
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Brown v. State Page 3