Opinion
Nos. 01-09-00332-CR, 01-09-00405-CR, 01-09-00406-CR
Opinion issued October 29, 2009. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 258th District Court Polk County, Texas, Trial Court Cause No. 19,243.
This case was transferred to this Court from the Ninth Court of Appeals in Beaumont pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (Vernon 2005).
Panel consists of Justices JENNINGS, KEYES, and SHARP.
MEMORANDUM OPINION
Appellant, Andrew Stubblefield, was indicted for four counts of aggravated robbery, charged in a single indictment. Pursuant to a plea bargain agreement, appellant pleaded guilty and the State abandoned the fourth count and made an agreed punishment recommendation as to the remaining counts. The trial court followed the agreed punishment recommendation, deferred adjudication of guilt on the remaining three counts, and placed appellant on community supervision for ten years with a $3000 fine. Just over five months later, the State filed a motion to adjudicate guilt, alleging that appellant had violated four conditions of his community supervision. The trial court sanctioned appellant and continued him on community supervision. Three months later, the State filed a second motion to adjudicate guilt, alleging that appellant had violated a condition of his supervision. The trial court sanctioned appellant and continued him on community supervision. A year later, the State filed a third motion to adjudicate guilt, alleging that appellant had violated six conditions of his community supervision. After a contested evidentiary hearing at which appellant pleaded "not true" to the allegations that he had violated his community supervision, the trial court found that all six allegations were true, adjudicated appellant's guilt on each of the three aggravated robbery charges, and sentenced him to prison for 40 years on each conviction, with the sentences running concurrently. Appellant did not file a motion for new trial. Appellant filed a timely notice of appeal for his convictions. We affirm. Appellant's counsel on appeal has filed a brief stating the record presents no reversible error, that the appeal is without merit and frivolous, and that the appeal must be dismissed or affirmed. 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. Appellant's counsel has, in accordance with Anders procedures, filed a motion to withdraw. Id. Counsel represents that he has served a copy of the brief to the appellant. Counsel also advised appellant of his right to examine the appellate record and file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). Appellant filed a pro se response. When this Court receives an Anders brief, we evaluate the appeal by conducting an independent review of the entire record. Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.-Houston [1st Dist.] 2006, no pet.). Our responsibility is not "to review the merits of each claim raised" but simply to "determine whether there are any arguable grounds" upon which counsel could ethically base an appeal. Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005). An arguable ground for appeal is a ground that is not frivolous; it must be an argument that could "conceivably persuade the court." In re Schulman, 252 S.W.3d 403, 407 n. 12 (Tex. Crim. App. 2008) (quoting McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 436, 108 S. Ct. 1895, 1901 (1988)). If after reviewing the entire record, we conclude that an appeal would be frivolous, we may affirm the trial court by issuing an opinion in which we explain that we found no arguable grounds upon which to base an appeal. Bledsoe, 178 S.W.3d at 826-28. In accordance with Anders, 386 U.S. at 744-45, 87 S. Ct. at 1400, and Bledsoe, 178 S.W.3d at 826-27, we have reviewed the entire record, counsel's Anders brief, and appellant's pro se response. We conclude that no arguable ground for reversible error exists. Having reached that conclusion, we affirm the lower court and grant appellant's appointed counsel's motion to withdraw.
Although alleged in a single indictment, and memorialized in a single judgment, each separate count for which appellant was convicted has been given its own appellate cause number.
We note that appellant's appointed counsel still has a duty to inform appellant of the result of this appeal and that appellant may, on his own, pursue discretionary appeal in the Texas Court of Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).