No. 01-09-00721-CR
Opinion issued April 28, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(B).
On Appeal from the 263rd District Court, Harris County, Texas, Trial Court Case No. 1159833.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
JANE BLAND, Justice.
Appellant, Martha Beatrice Jackson, appeals from a judgment for felony injury to a child that sentences her to two years in prison and a $500 fine. This prison sentence comes as a result of a motion to adjudicate her guilt filed by the State asking the court to revoke her three year deferred adjudication. The motion to adjudicate includes assertions that appellant violated the conditions of her deferred adjudication by failing to report to her supervision officer for five consecutive months, and failing to perform her community service as ordered by the court. Appellant pleaded true without an agreement with the State concerning her punishment, and she confessed in writing to these allegations in the State's motion to adjudicate. She also acknowledged in writing that she was aware of the range of punishment for the offense. At the hearing concerning the motion to adjudicate, her attorney asked the trial court to allow her to remain on community supervision, explaining that appellant had transportation problems, health problems, and child care issues that have interfered with her ability to complete the conditions. Appellant's attorney also told the court that this was the first motion to adjudicate filed against appellant. The trial court determined that appellant was an "absconder," found the allegations true, revoked her deferred adjudication, and sentenced her. Jackson's 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 her pro se response to the Anders brief, appellant denies her guilt for injury to a child, which we do not have jurisdiction to address. Appellant also complains that the initial sentence "would not have been so harsh []" had a letter that her daughter, the complainant, wrote been brought to the trial judge's attention. Appellant, however, does not present any issue relating to her punishment after pleading "true" to violations of her deferred adjudication. The appellant filed a pro se notice of appeal, and the trial court certified that she retained her right of appeal. A review of the record reveals no arguable ground for appeal. We affirm.
Anders Procedure
The brief submitted by Jackson'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 Jackson, requested permission to withdraw from the case, and notified Jackson of her 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). Our role in this Anders appeal, which includes reviewing Jackson'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 Jackson in her pro se response. See id. If we determine that there are arguable grounds for appeal, Jackson 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. Jackson 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, Jackson's appointed counsel's Anders brief, and Jackson's pro se response to that brief. We conclude that no arguable ground for reversible error exists. Having reached that conclusion, we affirm the judgment of the trial court and grant Jackson's appointed counsel's motion to withdraw. Conclusion
We affirm the judgment of the trial court and grant appointed counsel's motion to withdraw.