No. 01-06-00887-CR
Opinion issued June 11, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 184th District Court Harris County, Texas, Trial Court Cause No. 1052495.
Panel consists of Justices BLAND, SHARP, and TAFT.
Justice Tim Taft, who retired from the First Court of Appeals on June 1, 2009, continues to sit by assignment for the disposition of this case, which was submitted on April 28, 2009.
JIM SHARP, Justice.
Appellant, LaTonya Monique Polk, pleaded guilty, without an agreed punishment recommendation, to an indictment charging that she engaged in the organized criminal activity of theft of property valued at $20,000 or more, but less than $100,000. See Tex. Penal Code Ann. §§ 31.03(a), (b)(1), (e)(5), 71.02(a)(1) (Vernon Supp. 2008). The trial court found appellant guilty and assessed punishment at 6 years in prison. Appellant's appointed counsel has filed an Anders brief.
Background
Appellant was indicted for engaging in organized theft. Appellant was an employee of Compass Bank, and she gave checks to Kadarrell Freemen, who then fraudulently passed the checks to commit approximately $119,000 in retail theft. Appellant pleaded guilty without an agreed recommendation and requested that she be placed on community supervision. The trial court accepted appellant's guilty plea and ordered a presentencing investigation. Appellant testified at the sentencing hearing and asked the trial court to give her community supervision. During direct examination, appellant's lawyer asked her, "Why do you think the Court should give you community supervision?" Appellant responded, "I feel that I deserve this because I have three sons that need me and I'm all that they have. I'm all that they know. I have always been there for my kids, and I don't feel like nobody else can take care of my kids the way I do. And another reason is that I realize what I did was wrong, and it's no way that I will go back and do myself like this again or my kids or my loved ones that's around me. That's why I feel like I deserve a second chance." In its cross-examination, the State emphasized appellant's comment that she "deserved" community supervision, and the trial court at sentencing said that appellant "just doesn't seem to understand what a serious offense this is." Discussion
Appellant's appointed counsel on appeal has filed an Anders brief, stating that she has found no arguable points of error to raise on appeal and moving to withdraw as counsel. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). The brief meets the requirements of Anders by presenting a professional evaluation of the record and detailing why there are no arguable grounds for reversal. Id. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d 807, 810 (Tex.Crim.App. 1978). Appellant has filed a pro se response to the Anders brief, in which she alleges that she received ineffective assistance of counsel because she claims her lawyer guaranteed she would receive community supervision if she pleaded guilty and agreed to a presentence investigation. Appellant did not file a motion for new trial to provide an evidentiary basis for her ineffective-assistance-of-counsel claim, and there is otherwise no evidence to support her claim. A court of appeals has two options when an Anders brief and a subsequent pro se response are filed. Upon reviewing the entire record, it may determine (1) that the appeal is wholly frivolous and issue an opinion explaining that it finds no reversible error or (2) that there are arguable grounds for appeal and remand the cause to the trial court for appointment of new appellate counsel. Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005). We have carefully reviewed the entire appellate record. We conclude that there is no reversible error and that the appeal is wholly frivolous. See id. We affirm the judgment and grant counsel's motion to withdraw.