No. 01-06-00711-CR
Opinion filed January 31, 2008. DO NOT PUBLISH. See Tex. R. App. P. 47.2(b).
On Appeal from the 339th District Court Harris County, Texas, Trial Court Cause No. 1024303.
Panel consists of Justices, TAFT, KEYES, and ALCALA.
ELSA ALCALA, Justice.Page 2
Appellant, Christopher Baltrip, appeals from a conviction for aggravated robbery for which he was sentenced to 15 years in prison. TEX. PENAL CODE ANN. § 29.03 (Vernon 2003). Appellant pleaded guilty without an agreed recommendation from the State. Appellant'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 on appeal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant filed a pro se response brief. In his sole issue, appellant contends that he received ineffective assistance of trial counsel. We affirm.
Background
On April 21, 2005, appellant and a friend, Troy Spencer, intentionally and knowingly threatened and placed complainant in fear of imminent bodily injury and death by exhibiting a firearm while in the course of committing theft of complainant's vehicle. One week after the theft, police arrested appellant and Spencer inside complainant's vehicle. Police discovered Spencer's gun on the floor underneath the passenger seat, as well as marijuana in the center console. Appellant was released on bail, but was rearrested when he cut off his ankle monitor. Appellant pleaded guilty without an agreed recommendation from the State. After admonishing appellant about the consequences of pleading guilty, the trial court accepted the plea and found the evidence sufficient to substantiate appellant's guilt. At the sentencing hearing, appellant asked "the Judge to have mercy on [him]." Appellant testified that while he and Spencer were hanging out in the parking lot of a shopping center, Spencer showed appellant a pistol he had "on his waistband." Thirty seconds later, Spencer said "I'm about to get her. I'm about to get her" when complainant came out of a store. Appellant stated that as complainant attempted to enter her car, Spencer approached her with the gun. Appellant stood back "in shock." Spencer urged appellant to get in the car. Appellant feared that if he stayed in the parking lot police would think he had committed the robbery, so he entered on the passenger side of complainant's car and left in the car with Spencer. Spencer then drove appellant to appellant's house, where appellant stayed. Appellant acknowledged, however, that he originally told officers that the pistol was on his own waistband, to "take it" for his friend. Appellant's mother also testified at the hearing. She stated that appellant had successfully completed juvenile probation for a burglary committed when appellant was 15 years old. She also testified appellant had done well since then, and she submitted letters of recommendation on behalf of appellant. Anders Procedure
The brief submitted by appellant's court-appointed counsel states that there are no arguable grounds for reversal on appeal and, therefore, that any appeal would 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, 137-38 (Tex.Crim.App. 1969). Appellant's counsel sent a copy of the brief to appellant, requested permission to withdraw from the case, and notified appellant of his right to review the record and file a pro se response. When this Court receives an Anders brief from an appellant's court-appointed attorney asserting 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) (citing same passage from Anders). In conducting our review, we consider any pro se response that the appellant files to his appointed counsel's Anders brief. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (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. Id. 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. See id. The trial court must then either appoint another attorney to present all arguable grounds for appeal or, if appellant wishes, allow appellant to proceed pro se. See 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. See id. at 826-28. 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. In accordance with Anders, 386 U.S. at 744-45, 87 S. Ct. at 1400, and Bledsoe, 178 S.W.3d at 826-28, we have reviewed the record, appellant's appointed counsel's Anders brief, and appellant's pro se response to that brief, and we conclude that no reversible error exists. Conclusion
We affirm the judgment of the trial court and grant appellant's appointed counsel's motion to withdraw.