No. 01-08-00505-CR
Opinion issued November 19, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.2(B).
On Appeal from the 177th District Court, Harris County, Texas, Trial Court Cause Nos. 1121099.
Panel consists of Justices KEYES, ALCALA, and HANKS.
ELSA ALCALA, Justice.
Appellant, Samuel David Lynch, appeals from a judgment that sentences him to 30 years in prison for the felony offense of aggravated robbery with a deadly weapon. See Tex. Penal Code Ann. § 29.03 (Vernon 2003). Appellant pleaded guilty to the offense and was sentenced by a jury that found true both enhancement paragraphs. Appellant's court-appointed counsel filed an Anders brief in which he states appellant has no valid grounds for appeal and appellant's appeal is frivolous. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant's pro se response asserts his plea of guilty was involuntary due to ineffective assistance of trial counsel. We affirm.
Background
Martin White, a delivery driver for Hotshot Courier Services, testified that on June 11, he was in his truck when appellant ordered him at gun point to get out. White complied and appellant drove off. The next day, at about 1:00 in the afternoon, Melinda Fitzpatrick and co-worker Sammy Bryant were in a church parking lot loading boxes into Bryant's car when appellant approached them with a gun. He ordered both women to place their purses in his truck. They complied, ran back to the church, and called the police. Fitzpatrick later identified appellant as the robber from a group of photographs presented by deputies. Appellant was arrested in a stolen vehicle belonging to White on June 13. The next day, appellant gave a detailed taped confession admitting to the robbery and other robberies. During this period, appellant was on suicide watch. Detective Ken Nealy, who administered the confession, testified that appellant threatened suicide during the confession. Appellant's suicide plan was to strangle Detective Nealy to incite the police to shoot him. Detective Nealy testified that appellant's behavior was consistent with people who abuse crack cocaine. The court appointed Mary Moore as appellant's attorney. Almost three months after Moore was appointed, Moore requested the Harris County Psychiatric Services to conduct a psychiatric examination of appellant to determine his competency and sanity. Pursuant to the trial court's order to evaluate appellant for competency and sanity, Ramon Laval, Ph.D., evaluated appellant. The "Clinical Observations and Findings" section of Dr. Laval's reports stated appellant indicated that he had never received inpatient or outpatient psychiatric treatment and that he was not currently under any psychiatric care. Appellant did report a history of crack cocaine addiction. He stated that he smoked crack cocaine regularly, acknowledging the drug was a motivating force behind his crimes. He blamed the drug for severe depression that caused him to stop working. He stated that the drug problems had worsened to the point that he wanted to "put [him]self in a situation that would cause the police to kill [him] and [he then] started [the] robberies." On October 17, 2007, Dr. Laval contemporaneously released both the competency and sanity diagnoses. The competency diagnosis stated appellant had no psychiatric condition. The sanity diagnosis stated the same, and added that appellant did not meet the criteria for an insanity defense. Specifically, the sanity evaluation stated that, aside from the possible effects of crack cocaine, appellant was not suffering from symptoms of a mental disease or a mental defect of the type or degree that would have rendered him unable to know the difference between right and wrong at the time of the alleged offense. Finally, the report stated that appellant would have been able to know that the alleged criminal activity with which he was currently charged was wrong. Prior to trial, appellant's trial attorney held an identification hearing to determine if there were any inconsistencies in process the photo lineup. The State called several witnesses, including Fitzpatrick, Bryant, and the deputies who conducted the photo lineup. The testimony demonstrated there were no inconsistencies in the photo identification procedure through which appellant was identified as the robber. After voir dire, appellant changed his plea from not-guilty to guilty. The court gave appellant admonishments related to his plea, noted that appellant's plea was not a plea-bargain, and read the indictment, to which the defendant pleaded guilty. At the sentencing hearing, the State called Fitzpatrick, Bryant, and White. The State also called the officers who investigated the crime, administered the photo lineup, and conducted the confession interview. Appellant, appellant's brother, appellant's pastor, and a police officer testified for the defense. Appellant's counsel on appeal filed an Anders brief. In the brief, counsel asserts this appeal is frivolous. Counsel's brief meets the requirements of Anders by presenting a professional evaluation of the record demonstrating why there are no reversible grounds on appeal and referencing any grounds that might arguably support the appeal. Appellant has filed a pro se response to assert that his appeal is not frivolous. In his pro se response, appellant discusses his relationship with his trial attorney. Appellant states that he repeatedly tried to have his trial attorney plead him not guilty by reason of insanity, that his attorney was adverse to the idea, and that an adversarial relationship resulted. As an example of this adversarial relationship, appellant notes that his attorney "did not [] request a psychiatric evaluation of [his] competence and sanity at the time of the offense [and did not do so] until three months after [the offense], and that [the request] was only upon the appellant's insistence." Appellant contends that, on the day of trial, he intended to plead not guilty, but he later pleaded guilty because his attorney told him he had no defense and he would be better to "throw[] himself on the mercy of the court." Anders Procedure
The brief submitted by appellant'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). The State has waived its opportunity to file an appellee's brief to reply to the arguments presented in appellant's 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. 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 his appointed counsel's Anders brief. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005). Our role in this Anders appeal, which includes a pro se response by appellant, is limited to determining whether arguable grounds for appeal exist. Bledsoe, 178 S.W.3d at 827. If we determine that arguable grounds for appeal exist, we must abate the appeal and remand the case to the trial court to allow the court-appointed attorney to withdraw. Id. The trial court must then either appoint another attorney to present all arguable grounds for appeal or, if the defendant wishes, allow the defendant to proceed pro se. Id. We do not rule on the ultimate merits of the issues raised by appellant in his pro se response. Id. If we determine that there are arguable grounds for appeal, appellant is entitled to have new counsel address the merits of the issues raised. 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 by issuing an opinion in which we explain that we have reviewed the record and have found no reversible error. Bledsoe, 178 S.W.3d at 826-27. The holding that there are no arguable grounds for appeal is subject to challenge by an appellant by a petition for discretionary review filed in the Court of Criminal Appeals. Id. at 827 n. 6. In accordance with Anders and Bledsoe, we have reviewed the record, read appellant's appointed counsel's Anders brief, read appellant's pro se response to that brief, and conclude that no reversible error exists. Conclusion
We affirm the judgment of the trial court and grant appointed counsel's motion to withdraw.