Opinion
No. 04-11-00460-CR
02-15-2012
Trey O'BRIEN, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2009CR7358
Honorable Maria Teresa Herr, Judge Presiding
Opinion by: Catherine Stone, Chief Justice Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Steven C. Hilbig, Justice
AFFIRMED
Trey O'Brien entered an open plea of no contest to burglary of a habitation with intent to commit aggravated assault and aggravated assault with a deadly weapon. The trial court assessed sentences of twelve years in prison and a $2,000 fine for each offense, with the sentences running concurrently. O'Brien's court-appointed attorney filed a brief containing a professional evaluation of the record in accordance with Anders v. California, 386 U.S. 738 (1967). Counsel concludes that the appeal has no merit. Counsel provided O'Brien with a copy of the brief and informed him of his right to review the record and file his own brief. See Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.—San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.). O'Brien filed a pro se brief asserting ineffective assistance of counsel.
After reviewing the record, counsel's brief, and O'Brien's pro se brief, we conclude that the appeal is frivolous and without merit. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). The judgment of the trial court is affirmed. Appellate counsel's request to withdraw is granted. Nichols, 954 S.W.2d at 86; Bruns, 924 S.W.2d at 177 n.1. No substitute counsel will be appointed. Should O'Brien wish to seek further review of this case by the Texas Court of Criminal Appeals, O'Brien must either retain an attorney to file a petition for discretionary review or O'Brien must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the later of: (1) the date of this opinion; or (2) the date the last timely motion for rehearing is overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed in the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate procedure. See TEX. R. APP. P. 68.4.
If an Anders brief is filed in an appeal and the appellant elects to file a pro se brief, the Texas Court of Criminal Appeal has instructed that this court has two choices. Bledsoe, 178 S.W.2d at 826-27. We may "determine that the appeal is wholly frivolous and issue an opinion explaining that [the court] has reviewed the record and finds no reversible error." Id. "Or, [we] may determine that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues." Id. at 827. "Only after the issues have been briefed by new counsel may [this court] address the merits of the issues raised." Id. If we "were to review the case and issue an opinion which addressed and rejected the merits raised in a pro se response to an Anders brief, then [the] [a]ppellant would be deprived of the meaningful assistance of counsel." Id.
Catherine Stone, Chief Justice DO NOT PUBLISH