Kenneth Ray Frelow v. State

Opinion issued November 4, 2010 In The Court of Appeals For The First District of Texas ———————————— NO. 01-09-00718-CR ——————————— KENNETH RAY Frelow, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 176th District Court Harris County, Texas Trial Court Case No. 1158422 MEMORANDUM OPINION A jury found appellant, Kenneth Ray Frelow, guilty of the offense of aggravated assault[1] and assessed his punishment at confinement for ten years. Appellant’s counsel on appeal has filed a brief stating that the record presents no reversible error and the appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (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.; see also High v. State, 573 S.W.2d 807, 810 (Tex. Crim. App. [Panel Op.] 1978). The brief also reflects that counsel delivered a copy of the brief to appellant and advised appellant of his right to file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). When this Court receives an Anders brief from a defendant’s court-appointed appellate counsel, we conduct an independent review of the entire record to determine whether the appeal is frivolous, i.e., whether the record presents any arguable grounds for appeal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Stafford, 813 S.W.2d at 511. An appeal is frivolous when it does not present any argument that could “conceivably persuade the court.” In re Schulman, 252 S.W.3d 403, 407 n.12 (Tex. Crim. App. 2008) (citations omitted). In conducting our review, we consider any pro se response that the defendant files to his appointed counsel’s Anders brief. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). Appellant has filed a pro se response, contending that he is entitled to “lesser time,” he was the “victim” in the assault and he acted in self-defense, his lawyer “could have done a better job,” the complainant caused her own injuries by “push[ing] herself through the wall” and he did not “cut” the complainant, “there was no glass for evidence[],” and the charges should “be lesser” because he and the complainant “was common law married.” Having reviewed the record, counsel’s Anders brief, and appellant’s pro se response, we conclude that the appeal is frivolous and no reversible error exists. See id. Conclusion We affirm the judgment of the trial court. We grant appellate counsel’s motion to withdraw.[2] See Stephens v. State, 35 S.W.3d 770, 771–72 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (per curiam). Terry Jennings Justice Panel consists of Justices Jennings, Alcala, and Higley. Do not publish. Tex. R. App. P. 47.2(b). [1] See Tex. Penal Code Ann. §§ 22.01, 22.02 (Vernon Supp. 2010). [2] Appointed counsel still has a duty to inform appellant 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, 827 (Tex. Crim. App. 2005); Downs v. State, 137 S.W.3d 837, 842 n.2 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).