Opinion
No. 01-10-00640-CR
Opinion issued May 26, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 337th District Court Harris County, Texas, Trial Court Cause No. 629032.
Panel consists of Justices JENNINGS, HIGLEY, and BROWN.
MEMORANDUM OPINION
A jury convicted appellant, Gerardo Marquez, of the offense of murder and assessed punishment at confinement for life and a fine of $10,000. Appellant's conviction was affirmed on appeal. Marquez v. State, No. 10-93-00101-CR (Tex. App.-Waco, Sept. 13, 1995) (not published). Subsequently, appellant filed a pro se motion for post-conviction DNA testing. On June 10, 2010, the trial court denied appellant's motion for DNA testing. Appellant appealed. 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 frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). We grant counsel's motion to withdraw and affirm the trial court's judgment. An attorney has an ethical obligation to refuse to prosecute a frivolous appeal. In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). If an appointed attorney finds a case to be wholly frivolous, his obligation to his client is to seek leave to withdraw. Id. Counsel's obligation to the appellate court is to assure it, through an Anders brief, that, after a complete review of the record, the request to withdraw is well-founded. Id. We may not grant the motion to withdraw until:
(1) the attorney has sent a copy of his Anders brief to his client along with a letter explaining that the defendant has the right to file a pro se brief within 30 days, and he has ensured that his client has, at some point, been informed of his right to file a pro se [petition for discretionary review];
(2) the attorney has informed us that he has performed the above duties;
(3) the defendant has had time in which to file a pro se response; and
(4) we have reviewed the record, the Anders brief, and any pro se brief.Id. at 408-09. If we agree that the appeal is wholly frivolous, we will grant the attorney's motion to withdraw and affirm the trial court's judgment. See Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009). If we conclude that arguable grounds for appeal exist, we will grant the motion to withdraw, abate the case, and remand it to the trial court to appoint new counsel to file a brief on the merits. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). Here, counsel's brief reflects that he delivered a copy of the brief to appellant and informed him of his right to examine the appellate record and to file a response. See Schulman, 252 S.W.3d at 408. More than 30 days have passed, and appellant has not filed a pro se brief. See id. at 409 n. 23 (adopting 30-day period for response). Counsel's brief meets the Anders requirements in that it presents a professional evaluation of the record. 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 supplies us with references to the record and provides us with citation to legal authorities. 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, 154 (Tex. App.-Houston [1st Dist.] 2006, no pet.). We have independently reviewed the entire record, 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; Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (explaining that frivolity is determined by considering whether there are "arguable grounds" for review); Bledsoe, 178 S.W.3d at 826-27 (emphasizing that reviewing court — and not counsel — determines, after full examination of proceedings, whether the appeal is wholly frivolous); Mitchell, 193 S.W.3d at 155. Although we may issue an opinion explaining why the appeal lacks arguable merit, we are not required to do so. See Garner, 300 S.W.3d at 767. 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 827 n. 6. We affirm the trial court's judgment and grant counsel's motion to withdraw. Attorney Bob Wicoff 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). Further, although the trial court certified appellant's right to appeal, the certification does not include appellant's signature, indicating that he has been informed of his right to file a pro se petition for discretionary review, as required by the Rules of Appellate Procedure. See TEX. R. APP. P. 25.2(d). This defect was not remedied by appellant's counsel. Therefore, pursuant Rule 48.4, we ORDER appellant's appointed counsel 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 TEX. R. APP. P. 48.4; Bledsoe, 178 S.W.3d at 826-27. Any other pending motions are dismissed as moot.