Opinion issued November 21, 2012.
In The
Court of Appeals
For The
First District of Texas
NO. 01-11-00596-CR
____________
JOSEPH LESTER ROBINSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 1278417
MEMORANDUM OPINION
Appellant, Joseph Robinson, pleaded guilty to the burglary of a habitation
and pleaded “true” to two felony enhancements. The trial court found appellant
guilty, found the enhancements true, and assessed punishment at 35 years’
confinement.
Robinson’s appointed counsel on appeal has submitted 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, 87 S. Ct. 1396,
1400 (1967).
In his pro se response to the Anders brief, Robinson contends that: (1) the
trial court improperly denied his motion to suppress; and (2) his trial counsel was
ineffective in failing to object to certain exhibits admitted at trial and in failing to
adequately cross-examine the State’s witnesses. A review of the record reveals no
arguable ground for appeal. We therefore affirm.
Background
On August 31, 2010, witness Johnny O’Bryant observed a car pull up in front of the
apartment of Trishaul Lewis. It was approximately 10:00a.m. and it was a sunny
day. A man later identified as Joseph Robinson got out of the passenger side of the
car, walked up to the apartment, and kicked the front door open. O’Bryant watched
Robinson for approximately five minutes.
Witness Jason O’Connor, a maintenance worker, learned of the break-in and
leaned halfway out of the back door of the leasing office to observe the back porch
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of Lewis’s apartment. O’Connor testified to seeing “a [b]lack male wearing a white
muscle shirt and black shorts. His hands were stretched out over the guardrail and
he was looking exactly in [O’Connor’s] direction.” O’Connor also described the
man as “kind of stocky, bigger than [him]” and had a few tattoos on his neck and
arms. O’Connor briefly saw the hands and face of another African American male,
but both individuals went back into the apartment.
Deputy Marquez was dispatched to the scene for an “in progress” event.
When he arrived, Deputy Marquez noticed that the front door of Lewis’s apartment
was broken off its frame. After determining that no suspects were in the area, he
began inspecting for missing property. Deputy Marquez saw several items lined up
at the front door of the apartment, including a television and a set of wheels and
tires. He dusted them for fingerprints.
Lewis testified that she lived at the apartment in question and no one other
than her had a right to possess it. She did not give any consent for Robinson to be
in her apartment. Lewis testified that she knew Robinson and that he had been to
the apartment once before for a barbeque. Lewis told Deputy Marquez that the
items missing were two laptop computers, some clothing, and a lot of shoes. She
later testified in court that a television, a generator, some jewelry, tools, and some
baby things were missing.
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Four days later, Deputy Marquez presented photographic lineups to O’Bryant
and O’Connor. O’Bryant described the man he saw as “short, light skinned, stocky
buil[d]” and identified Robinson in a matter of seconds. O’Bryant testified that he
had seen Robinson on the property three or four times before. O’Bryant offered
inconsistent testimony as to Deputy Marquez’s instructions, but Deputy Marquez
testified that he did not instruct either witness that the suspect may or may not be in
the lineup. O’Bryant again identified Robinson in the courtroom at trial.
O’Connor also identified Robinson in the photographic lineup. He said that
he recognized Robinson “instantly,” and that he “knew for a fact. . . one hundred
percent.” He also identified Robinson in court.
Deputy Maurice Carpenter, a crime scene investigator for the Harris County
Sherriff’s Office, testified about the fingerprints that Deputy Marquez recovered
from the items lined up in Lewis’s apartment. He examined two right thumb
fingerprints that were lifted from a thirty-two inch television and compared them to
inked prints of Robinson, confirming a match.
Robinson produced an alibi witness, Shantea Cornelius, who testified that
Robinson was at her house the morning of the incident.
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Anders Procedure
The brief submitted by Robinson’s court-appointed counsel states his
professional opinion that there are no arguable grounds for reversal on appeal and
that any appeal would, therefore, lack merit. See Anders, 386 U.S. at 744, 87 S. Ct.
at 1400. 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 Robinson, requested permission to
withdraw from the case, and notified Robinson of his right to review the record and
to file a pro se 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
that issue independently by conducting our own review of the entire record. See
Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (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, 511 (Tex. Crim. App.
1991). In conducting our review, we consider any pro se response that the
defendant files to her appointed counsel’s Anders brief. See Bledsoe v. State, 178
S.W.3d 824, 826–28 (Tex. Crim. App. 2005).
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Our role in this Anders appeal, which includes reviewing Robinson’s pro se
response, 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. The trial court then either appoints another attorney to present
all arguable grounds for appeal or, if the defendant wishes, allows the defendant to
proceed pro se. See id. We do not rule on the ultimate merits of the issues raised
by Robinson in his pro se response. See id. If we determine that there are arguable
grounds for appeal, Robinson 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.
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. See id. at 826–28. Robinson may challenge the holding that there are no
arguable grounds for appeal in a petition for discretionary review filed in the Court
of Criminal Appeals. See id. at 827 & n.6.
In accordance with Anders and Bledsoe, we have reviewed the record,
Robinson’s appointed counsel’s Anders brief, and Robinson’s pro se response to
that brief. We conclude that no arguable ground for reversible error exists. Having
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reached that conclusion, we affirm the judgment of the trial court and grant
Robinson’s appointed counsel’s motion to withdraw.1
Conclusion
We affirm the judgment of the trial court and grant appointed counsel’s
motion to withdraw.
Jane Bland
Justice
Panel consists of Justices Bland, Massengale, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
1
Appointed appellate counsel still has a duty to inform Robinson of the result of this
appeal and that he may, on his own, pursue discretionary review in the Court of Criminal
Appeals. See Bledsoe v. State, 178 S.W.3d 824, 827 & n.6 (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.).
7