Ernest Lovell Davis v. State

Opinion issued October 8, 2009 In The Court of Appeals For The First District of Texas ____________ NO. 01-08-00837-CR ____________ ERNEST LOVELL DAVIS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 392246 MEMORANDUM OPINION In May 1984, appellant, Ernest Lovell Davis, was convicted of aggravated robbery and aggravated sexual assault, and his punishment was assessed at confinement for 20 years and for life, respectively. This Court affirmed appellant's convictions in 1985. See Davis v. State, Nos. 01-84-00326-CR & 01-84-00327-CR (Tex. App.--Houston [1st Dist.] Sept. 12, 1985, pet. ref'd) (not designated for publication). In July 2007, appellant filed a pro se motion for DNA testing, which the trial court denied after a hearing. Appellant appeals from the denial of his motion for post-conviction DNA testing. We affirm. PROCEDURAL BACKGROUND Appellant's court-appointed counsel has filed a motion to withdraw as counsel and a supporting brief concluding that this appeal is without merit. Counsel's brief meets the requirements of Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967), by presenting a professional evaluation of the record that demonstrates the lack of arguable grounds of error. See High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. 1978); Moore v. State, 845 S.W.2d 352, 353 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd). Appellant has filed a pro se response, in which he alleges that the trial court erred in failing to consider all of the relevant evidence in determining which evidence could be subjected to DNA testing. ANDERS PROCEDURE Upon receipt of a motion to withdraw and brief from an appellant's court-appointed attorney asserting that no arguable grounds for reversal on appeal exist, we must determine that issue independently by conducting our own review of the entire record. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court--and not appointed counsel--determines, after full examination of proceedings, whether case is "wholly frivolous"); Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991) (quoting Anders). In conducting our review, we consider any pro se response that the appellant files to his appointed counsel's Anders brief. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005). Our role in an Anders case is limited to determining whether arguable grounds for appeal exist. See id. at 826-27. If we determine that arguable grounds for appeal exist, we must abate the appeal and remand the case to the trial court to allow the court-appointed attorney to withdraw. See id. at 827. The trial court must then either appoint another attorney to present all arguable grounds for appeal or, if the defendant wishes, must allow the defendant to proceed pro se in the appellate court. See id. We do not rule on the ultimate merits of the issues raised by the appellant in his pro se response. Id. Rather, if we determine that there are arguable grounds for appeal, the appellant is entitled to have new counsel appointed to address the merits of the issues raised. Id. "Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised." Id. If, on the other hand, 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 arguable grounds for appeal. See id. at 826-27, 828. The holding that there are no arguable grounds for appeal is subject to challenge through a petition for discretionary review filed in the Court of Criminal Appeals. Id. at 827, 827 n.6. In accordance with Anders and Bledsoe, we have reviewed the entire record, appellant's appointed counsel's Anders brief, and appellant's pro se response to that brief, and we conclude that no arguable grounds for reversal exist. CONCLUSION We affirm the order of the trial court and grant appointed counsel's motion to withdraw. Appointed counsel still has a duty to inform appellant of the result of this appeal and that appellant may, on his own, pursue discretionary review in the Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 826-27. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Bland and Massengale. Do not publish. See Tex. R. App. P. 47.2(b).