Pease v. State

Full title: DONALD R. PEASE, APPELLANT v. THE STATE OF TEXAS, APPELLEE

Court: Court of Appeals of Texas, Seventh District, Amarillo, Panel D

Date published: Mar 13, 2009

No. 07-08-0184-CR (Tex. App. Mar. 13, 2009)

Opinion

No. 07-08-0184-CR

March 13, 2009. DO NOT PUBLISH.

Appealed from The 137th District Court Of Lubbock County; No. 2007-415,574; Honorable Cecil G. Puryear, Judge.

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

PATRICK A. PIRTLE, Justice.

Following a plea of not guilty, Appellant, Donald R. Pease, was convicted by a jury of aggravated robbery with an affirmative finding on use of a deadly weapon and sentenced to twenty-eight years confinement. In presenting this appeal, counsel has filed an Anders ¹ brief in support of a motion to withdraw. We grant counsel's motion and affirm. In support of his motion to withdraw, counsel certifies he has conducted a conscientious examination of the record and, in his opinion, the record reflects no potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex.Crim.App. 2008). Counsel has candidly discussed why, under the controlling authorities, the appeal is frivolous. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978). Counsel has also demonstrated that he has complied with the requirements of Anders and In re Schulman by (1) providing a copy of the brief to Appellant, (2) notifying him of his right to file a pro se response if he desired to do so, and (3) informing him of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408.² By letter, this Court granted Appellant thirty days in which to exercise his right to file a response to counsel's brief, should he be so inclined. Id. at n. 23. Appellant did not file a response. Neither did the State favor us with a brief.

1 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

2 Notwithstanding that Appellant was informed of his right to file a pro se petition fordiscretionary review upon execution of the Trial Court's Certification of Defendant's Rightof Appeal, counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedurewhich provides that counsel shall within five days after this opinion is handed down, sendAppellant a copy of the opinion and judgment together with notification of his right to filea pro se petition for discretionary review. In re Schulman, at 408 fn.22 at 411 fn.35.

Potential Issues

By the Anders brief, counsel raises three potential issues, to-wit: (1) the evidence was legally insufficient to support Appellant's conviction; (2) the evidence was factually insufficient to support Appellant's conviction; and (3) the non-accomplice evidence was insufficient to corroborate the testimony of Clifford Johnson, Appellant's co-actor. Counsel then explains why the issues have no merit. We have independently examined the entire record to determine whether there are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); In re Schulman, 252 S.W.3d at 409; Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such issues. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After reviewing the record and counsel's brief, we agree with counsel that there are no plausible grounds for appeal. See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005). Accordingly, counsel's motion to withdraw is granted and the trial court's judgment is affirmed.