Frank Bernard Vinson v. State

Opinion issued May 17, 2007 In The Court of Appeals For The First District of Texas NO. 01-06-00261-CR FRANK BERNARD VINSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 228th District Court Harris County, Texas Trial Court Cause No. 1014454 MEMORANDUM OPINION The jury found appellant, Frank Bernard Vinson, guilty of possession with intent to deliver a controlled substance (cocaine) weighing more than 4 grams but less than 200 grams. See Tex. Pen. Code Ann. § 481.112(a), (d) (Vernon 2003). Appellant pleaded "true" to an enhancement paragraph, and the jury assessed punishment at 23 years in prison. Appellant's court-appointed counsel has filed a motion to withdraw and submitted a brief stating that the appeal is without merit and wholly frivolous. Counsel also stated that, in his professional opinion, "there are no grounds upon which an appeal could be predicated." See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant filed a pro se response, raising the following points: (1) the evidence is legally and factually insufficient to support his conviction; (2) the trial court erred by denying his motion to suppress; and (3) he received ineffective assistance of counsel at trial. (1) We affirm. Anders Procedure Pursuant to Anders, when court-appointed counsel files a motion to withdraw and files a brief in which he concludes that there are no arguable grounds for appeal, we review the record and make an independent determination. See Anders v. California, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court--and not counsel--determines, after full examination of proceedings, whether case is "wholly frivolous"); accord Bledsoe v. State, 178 S.W.2d 824, 826 (Tex. Crim. App. 2005); Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.--Houston [1st Dist.] 2006, no pet.). We consider any pro se response appellant may file to the Anders brief, but we do not rule on the ultimate merits of his response. Bledsoe, 178 S.W.3d at 826-27; Mitchell, 193 S.W.3d at 155-56. If we determine from our independent review of the entire record that the appeal is wholly frivolous, we may affirm the trial court's judgment by issuing an opinion in which we explain that we have reviewed the record and have found no reversible error. Bledsoe, 178 S.W.3d at 826-27; Mitchell, 193 S.W.3d at 156. If we find arguable grounds for appeal, we abate the appeal, remand the case to the trial court, and allow the court-appointed attorney to withdraw. Bledsoe, 178 S.W.3d at 826-27; Mitchell, 193 S.W.3d at 156. The trial court then must either appoint another attorney to present all arguable grounds for appeal or allow the defendant to proceed pro se if he desires. Bledsoe, 178 S.W.3d at 826-27; Mitchell, 193 S.W.3d at 156. Analysis Here, the brief filed by appellant's counsel meets the minimum Anders requirements by presenting a professional evaluation of the record and stating why there are no arguable grounds for reversal on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Appellant's counsel indicates that he has diligently reviewed the record and that, in his opinion, the appeal is without merit and wholly frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell, 193 S.W.3d at 154. In so doing, counsel discusses the evidence adduced at the trial, supplies us with references to the record, and provides us with citation to legal authorities. Cf. High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. 1978) We have reviewed counsel's brief and appellant's pro se response, and we have conducted an independent examination of the record. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Bledsoe, 178 S.W.2d 826-27; Mitchell, 193 S.W.3d at 155. Based on this review, we conclude that no reversible error exists. Conclusion We affirm the judgment of the trial court and grant the motion to withdraw of appellant's counsel. (2) Laura Carter Higley Justice Panel consists of Chief Justice Radack and Justice Keyes, and Higley. Do not publish. Tex. R. App. P. 47.2(b). 1. The State waived its opportunity to file a reply to the arguments presented in appellant's pro se response. 2. Appellant's counsel maintains a duty to inform appellant of the result of this appeal and of the fact that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.2d 824, 827 & n.6 (Tex. Crim. App. 2005); Stephens v. State, 35 S.W.3d 770, 771-72 (Tex. App.--Houston [1st Dist.] 2000, no pet.).