Opinion
NO. 01-10-00546-CR
05-10-2012
WILLY WOODY JONES A/K/A GARY R. HINTON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Case No. 1226465
MEMORANDUM OPINION
A jury found appellant, Willy Woody Jones, guilty of burglary of a habitation and, after finding two enhancement paragraphs true—that Jones has two prior convictions for burglary of habitation—assessed his punishment at confinement for life. See TEX. PENAL CODE ANN. § 30.02 (West 2011). Jones's court-appointed counsel has filed a motion to withdraw from Jones's representation on appeal, stating that a complete review of the record has revealed no arguable grounds of error. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Jones has not submitted a pro se reply brief. We have reviewed the record in its entirety and, having found no reversible error, we grant counsel's motion to withdraw and affirm the judgment of the trial court.
Background
In July 2009, Office Bogar responded to a 9-1-1 call about a suspicious person entering the complainant's house. When he approached the house, he found Jones in the backyard, carrying a pillowcase filled with jewelry and electronics. Officer Bogar also observed a step ladder under a broken window to the house. Based on the presence of the step ladder and broken window, Officer Bogar concluded that Jones had entered the house through the window and stolen the items in the pillow case. He then arrested Jones on suspicion of burglary of a habitation.
After the responding officers inventoried the pillow case and found jewelry, electronic game cartridges, a DVD player, and a, electronic game system, they contacted the complainant, Diane Bowen. Bowen met the officers at her house and identified the items as belonging to her. Bowen had been at work that day. She testified that she had not arranged for anyone to work at her house nor given consent for Jones to enter her house.
On direct-examination, the prosecutor asked Bowen: "How did it make you feel to know that someone had been in your children's room?" Jones objected to the relevance of the question, and the trial court overruled his objection. Bowen testified that, "[w]e felt very violated. My children were very scared . . . we felt violated." Jones raised no other objections during trial.
Discussion
Counsel's brief meets the minimum requirements of Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967), by presenting a professional evaluation of the record and stating why there are no arguable grounds of error on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Counsel sent a copy of the brief to Jones, requested permission to withdraw, and informed Jones of his right to file a pro se response. Jones did not 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, 510 (Tex. Crim. App. 1991). Any pro se response is also considered. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005).
Thus, our role in this Anders appeal, which consists of reviewing the entire record, 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. Then, the trial court appoints another attorney to present all arguable grounds for appeal. See id. If we determine that arguable grounds for appeal exist, then Jones 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.
On the other hand, if our independent review of the record leads us to conclude that the appeal is wholly frivolous, then we may affirm the trial court's judgment by issuing an opinion in which we explain that we have reviewed the record and find no reversible error. Bledsoe, 178 S.W.3d at 826-28. Jones may challenge the holding that there are no arguable grounds for appeal by petitioning for discretionary review in the Court of Criminal Appeals. Id. at 827 & n.6.
Following Anders and Bledsoe, we have reviewed the record and counsel's Anders brief. We conclude that no reversible error exists. Consequently, we affirm the judgment of the trial court and grant counsel's motion to withdraw.
Appointed counsel still has a duty to inform appellant of the result of this appeal. send appellant a copy of this opinion and judgment. and notify appellant that he may. on his own. pursue discretionary review in the Court of Criminal Appeals. TEX. R. APP. P. 48.4; see also Bledsoe, 178 S.W.3d at 827; Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997); Stephens v. State, 35 S.W.3d 770, 771-72 (Tex. App.—Houston [1st Dist.] 2000, no pet.).
Conclusion
We affirm the judgment of the trial court and grant appointed counsel's motion to withdraw.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland and Sharp. Do not publish. TEX. R. APP. P. 47.2(b).