Opinion
No. 10-07-00044-CR
Opinion Delivered and filed April 23, 2008. DO NOT PUBLISH.
Appeal from the 54th District Court McLennan County, Texas, Trial Court No. 2006-807-C2. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
White pleaded guilty to robbery. See TEX. PENAL CODE ANN. § 29.02(a) (Vernon 2003). The State alleged prior felonies to increase White's range of punishment. See id. § 12.42(b), (d) (Vernon Supp. 2007). White elected that the trial court assess White's punishment. White appeals his sentence. White's counsel filed an Anders v. California Brief including a Motion to Withdraw as Appellate Counsel. See Anders v. California, 386 U.S. 738 (1967). We affirm. Counsel informed White of his right to file a brief, and White has filed a Reply to Appellate Counsel's Motion to Withdraw under Anders v. California. The State has filed a Response to Court's Request for a Brief. We must, "after a full examination of all the proceedings, . . . decide whether the case is wholly frivolous." Anders at 744; accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex.Crim.App. 1991); Coronado v. State, 996 S.W.2d 283, 285 (Tex.App.-Waco 1999, order) (per curiam), disp. on merits, 25 S.W.3d 806 (Tex.App.-Waco 2000, pet. ref'd). An appeal is "wholly frivolous" or "without merit" when it "lacks any basis in law or fact." McCoy v. Court of Appeals, 486 U.S. 429, 439 n. 10 (1988). Arguments are frivolous when they "cannot conceivably persuade the court." Id. at 436. An appeal is not wholly frivolous when it is based on "arguable grounds." Stafford at 511. There are at least four "'educational burdens' that appellate counsel must shoulder whenever he files an Anders brief and a motion to withdraw from appellate representation":
he must provide his client with a copy of the brief and motion; inform his client that he has the right to file a pro se brief; . . . inform his client that he is entitled to review the appellate record in preparation of such a pro se brief";and "inform his client of his right to pursue a petition for discretionary review in th[e] Court" of Criminal Appeals, "should the court of appeals deny him relief on appeal." Meza v. State, 206 S.W.3d 684, 689 n. 23 (Tex.Crim.App. 2006) (citing Johnson v. State, 885 S.W.2d 641 (Tex.App.-Waco 1994, pet. ref'd)); see TEX. R. APP. P. 68.2(a); Ex parte Owens, 206 S.W.3d 670, 674 n. 28 (Tex.Crim.App. 2006); see also Ex parte Florentino, 206 S.W.3d 124 (Tex.Crim.App. 2006) (per curiam); Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App. 1997). "Because the court of appeals may agree that the appeal is frivolous and grant appellate counsel's motion to withdraw, appellate counsel should inform his client of the right to pursue a petition for discretionary review while he is still appointed-ideally, at the same time that he satisfies his other 'educational burdens.'" Meza at 689 n. 23; see Owens at 674 n. 28. Counsel's brief thoroughly reviews the trial court's admonishments to White before White's guilty plea and the voluntariness of White's plea, as well as the legality of White's sentence. Counsel's brief also reviews the State's compliance with the plea agreement, the assistance rendered by White's trial counsel, and the proof of the punishment allegations. Counsel concludes that the appeal is wholly frivolous. We have reviewed the record and have independently determined that the appeal is wholly frivolous. Accordingly, we affirm, and grant counsel's motion to withdraw. White may request the Texas Court of Criminal Appeals to review our decision by filing a petition for discretionary review with this Court within 30 days after the date of this opinion. See TEX. R. APP. P. 68.2(a).
In reliance on the holding in Bledsoe v. Texas, the State's reply states, "It is not appropriate for the State to respond to [White]'s reply in this case." (State Reply at 1); see Bledsoe v. State, 178 S.W.3d 824, 827 (Tex.Crim.App. 2005).
White contends that his trial counsel failed to render the effective assistance of counsel. White argues that his trial counsel did not investigate and prepare a mitigation defense, including expert testimony, concerning White's use of controlled substances. We have paid particular attention to that issue as we conducted our independent review of the record for arguable issues. We found nothing in the record showing either the reasons for trial counsel's decision or what evidence White could have presented to rebut the presumption of effective assistance. See U.S. CONST. amend. VI; Rompilla v. Beard, 545 U.S. 374 (2005); Yarborough v. Gentry, 540 U.S. 1 (2003); Wiggins v. Smith, 539 U.S. 510 (2003); Massaro v. United States, 538 U.S. 500 (2003); Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Ellis, 233 S.W.3d 324 (Tex.Crim.App. 2007); Mata v. State, 226 S.W.2d 425 (Tex.Crim.App. 2007); Goodspeed v. State, 187 S.W.3d 390 (Tex.Crim.App. 2005); Salinas v. State, 163 S.W.3d 734 (Tex.Crim.App. 2005); Rylander v. State, 101 S.W.3d 107 (Tex.Crim.App. 2003); Garcia v. State, 57 S.W.3d 436 (Tex.Crim.App. 2001); Thompson v. State, 9 S.W.3d 808 (Tex.Crim.App. 1999); McNeil v. State, 174 S.W.3d 758 (Tex.App.-Waco 2005, no pet.).