Opinion issued June 18, 2013.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00457-CR
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KEISHA MARIE HARMON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
of Jefferson County, Texas
Trial Court Cause No. 10-08764
MEMORANDUM OPINION
Appellant, Keisha Marie Harmon, pleaded guilty to state jail felony offense
of securing execution of a document by deception with a plea agreement of
deferred adjudication, $2500 in restitution and $2690 in administrative fees, and
placement on community supervision for three years. See TEX. PENAL CODE ANN.
§ 32.46 (West 2010). The State subsequently moved to revoke the community
supervision. After a hearing, the trial court found true the State’s allegations that
Harmon had violated the conditions of her community supervision, revoked it, and
sentenced her to two years’ confinement. Harmon’s court-appointed appellate
counsel filed a motion to withdraw along with a brief stating his professional
opinion that the appeal is without merit and that there are no arguable grounds for
reversal. See Anders v. California, 386 U.S. 738, 744 (1967). Harmon has not
submitted a pro se reply brief. We have reviewed the record in its entirety and,
having found no reversible error, we grant counsel’s motion to withdraw and
affirm the judgment of the trial court.
Background
In April 2010, the State charged Harmon by indictment with securing
execution of a document by deception. In May 2010, she pleaded guilty to the
offense with an agreed punishment recommendation of deferred adjudication and
payment of $2500 in restitution. The court ordered deferred adjudication and
placed Harmon under community supervision for a term of three years subject to a
variety of conditions. In March 2012, the State moved to revoke Harmon’s
community supervision, alleging in eight counts that she violated its terms. After
Harmon was arrested on March 28, 2012, the State added two more counts, namely
(1) that Harmon committed the offense of public intoxication and (2) that Harmon
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committed the offense of failure to identify—fugitive from justice, by failing
properly to identify herself to the officer who arrested her for public intoxication.
Harmon pleaded true to these two additional counts at the revocation hearing. The
trial court found that Harmon violated these two terms, revoked her community
supervision, and assessed her punishment at two years’ confinement. Harmon
timely filed her notice of appeal. The trial court certified Harmon’s right to appeal
by stating that this “is not a plea-bargain case, and the defendant has the right to
appeal.”
Discussion
The brief submitted by Harmon’s court-appointed appellate counsel states
his professional opinion that no arguable grounds for reversal exist, and any appeal
would, therefore, lack merit. Anders, 386 U.S. at 744. Counsel’s brief 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). Counsel sent a
copy of the brief to Harmon, requested permission to withdraw from the case, and
notified Harmon of her right to review the record and file a pro se response.
Harmon never filed a separate response.
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
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that issue independently by conducting our own review of the entire record. See
Anders, 386 U.S. at 744 (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, 510 (Tex. Crim. App. 1991). Any
pro se response is also considered. See Bledsoe v. State, 178 S.W.3d 824, 826–28
(Tex. Crim. App. 2005).
Thus, our role in this Anders appeal, which consists of reviewing the entire
record, is limited to determining whether arguable grounds for appeal exist. See id.
at 827. If we determine that arguable grounds for appeal exist, we abate the appeal
and remand the case to the trial court to allow the court-appointed attorney to
withdraw. See id. Then, the trial court appoints another attorney to present all
arguable grounds for appeal. See id. If we determine that arguable grounds for
appeal do exist, Harmon 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.
On the other hand, if our independent review of the record leads us to
conclude that the 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 find no reversible error. Bledsoe, 178 S.W.3d at 826–28. Harmon may
challenge the holding that there are no arguable grounds for appeal by petitioning
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for discretionary review in the Court of Criminal Appeals. Id. at 827 & n.6.
Following Anders and Bledsoe, we have reviewed the record and counsel’s
Anders brief. We conclude that no reversible error exists. Consequently, we affirm
the judgment of the trial court and grant counsel’s motion to withdraw.*
Conclusion
We affirm the judgment of the trial court and grant appointed counsel’s
motion to withdraw.
Jane Bland
Justice
Panel consists of Justices Jennings, Bland, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
*
Appointed counsel still has a duty to inform appellant of the result of this
appeal, send appellant a copy of this opinion and judgment, and notify
appellant that she may, on her own, pursue discretionary review in the Court
of Criminal Appeals. TEX. R. APP. P. 48.4; see also Bledsoe v. State, 178
S.W.3d 824, 827 (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.).
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