Opinion
NO. 01-10-313-CR
01-05-2012
BILLY TOBAR, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Case No. 1110414
MEMORANDUM OPINION
Appellant Billy Tobar pleaded true to the offense of aggravated sexual assault of a child younger than fourteen years of age. Pursuant to a plea agreement with the State, the trial court deferred adjudication of guilt and placed Tobar on community supervision. Subsequently, the State moved to revoke Tobar's community supervision and to adjudicate guilt, on the grounds that Tobar had violated the conditions of his community supervision. Tobar pleaded "true" to two of the allegations in the motion and "not true" to the remaining allegations. The trial court found the allegations true, adjudged appellant guilty of the original charge, and assessed punishment at confinement for twenty years. The trial court certified Tobar's right to appeal, and he timely appealed.
Tobar's appointed counsel on appeal has filed a motion to withdraw and an Anders brief stating that the record presents no reversible error and therefore the appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). We grant counsel's motion to withdraw and affirm the trial court's judgment.
An attorney has an ethical obligation to refuse to prosecute a frivolous appeal. In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (citing McCoy v. Court of Appeals of Wis., 486 U.S. 429, 436, 108 S. Ct. 1895, 1901 (1988)). If an appointed attorney finds a case to be wholly frivolous, his obligation to his client is to seek leave to withdraw. Id. at 407. Counsel's obligation to the appellate court is to assure it, through an Anders brief, that, after a complete review of the record, the request to withdraw is well-founded. Id.
We may not grant the motion to withdraw until:
(1) the attorney has sent a copy of his Anders brief to his client along with a letter explaining that the defendant has the right to file a pro se brief within 30 days, and he has ensured that his client has, at some point, been informed of his right to file a pro se petition for discretionary review with the Texas Court of Criminal Appeals;See id. at 408-09. If we agree that the appeal is wholly frivolous, we will grant the attorney's motion to withdraw and affirm the trial court's judgment. See Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009). If we conclude that arguable grounds for appeal exist, we will grant the motion to withdraw, abate the case, and remand it to the trial court to appoint new counsel to file a brief on the merits. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
(2) the attorney has informed this Court that he has performed the above duties;
(3) the defendant has had time in which to file a pro se response; and
(4) we have reviewed the record, the Anders brief, and any pro se brief.
Here, counsel's brief reflects that he delivered a copy of the brief to Tobar and informed him of his right to examine the appellate record and to file a response. See Schulman, 252 S.W.3d at 408. Tobar has not filed a response.
Counsel's brief meets the Anders requirements by presenting a professional evaluation of the record. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel discusses the evidence adduced at the trial, supplies us with references to the record, and provides us with citation to legal authorities. Counsel indicates that he has thoroughly reviewed the record and that he is unable to advance any ground of error that warrants reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 154 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
We have independently reviewed the entire record, and we conclude that no reversible error exists in the record, that there are no arguable grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Garner, 300 S.W.3d at 767 (explaining that frivolity is determined by considering whether there are "arguable grounds" for review); Bledsoe, 178 S.W.3d at 826-27 & n.4 (emphasizing that reviewing court—and not counsel— determines, after full examination of proceedings, whether appeal is wholly frivolous); Mitchell, 193 S.W.3d at 155. An appellant may challenge a holding that there are no arguable grounds for appeal by filing a petition for discretionary review in the Court of Criminal Appeals. See Bledsoe, 178 S.W.3d 827 & n.6.
We affirm the judgment of the trial court and grant counsel's motion to withdraw. Attorney Kurt B. Wentz must immediately send the notice required by Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(c). The Clerk of the Court is ordered to send a copy of this opinion to Tobar. We dismiss all pending motions as moot.
Appointed counsel still has a duty to inform Tobar of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
PER CURIAM
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).