Opinion
NO. 01-17-00713-CR
07-10-2018
DROR GOLDBERG, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court Harris County, Texas
Trial Court Cause No. 805617
MEMORANDUM OPINION
Appellant, Dror Haim Goldberg, was convicted of murder and sentenced to 48 years in prison. We affirmed the trial court's judgment in a published opinion. See Goldberg v. State, 95 S.W.3d 345 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd). Appellant then filed a post-conviction motion for forensic DNA testing. See TEX. CODE CRIM. PROC. ANN. art. 64.01(a-1). The trial court granted the motion. See id. art. 64.03(a), (c). Upon receiving the test results, the trial court found that the results were not favorable to appellant and that it is not reasonably probable that appellant would not have been convicted had the results been available during the trial of the offense. See id. art. 64.04. Appellant timely filed a notice of appeal. See id. art. 64.05.
Appellant's appointed counsel on appeal has filed a motion to withdraw, along with an Anders brief stating that the record presents no reversible error and therefore the appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). Counsel has informed us that he has delivered to appellant a copy of the brief, a copy of the entire record of the DNA proceedings, a copy of the original trial record, and a pro se motion for access to the appellate record in the event that appellant wishes to file a pro se response. See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008). Despite having over four months to do so, appellant has not filed a pro se response.
Counsel's brief meets the Anders requirements by presenting a professional evaluation of the record and supplying us with references to the record and legal authority. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has thoroughly reviewed the record and that he is unable to advance any grounds of error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
We have independently reviewed the entire record in this appeal, and we conclude that no reversible error exists in the record, that there are no arguable grounds for review, and that therefore the appeal is frivolous. 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 appeal is wholly frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing court determines whether arguable grounds exist by reviewing entire record). An appellant may challenge a holding that there are no arguable grounds for appeal by filing a petition for discretionary review in the Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.
We affirm the judgment of the trial court and grant counsel's motion to withdraw. Attorney Nicholas Mensch must immediately send the notice required by Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(c).
Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).
PER CURIAM Panel consists of Chief Justice Radack and Justices Jennings and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).