Adrian Thomas v. State

• Court: Court of Appeals of Texas
• Decided: August 26, 2010
• Docket: 01-09-01076-CR
• Status: Published

Opinion

Opinion issued August 26, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-01076-CR

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Adrian Thomas, Appellant

V.

The State of Texas, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Case No. 1017263

MEMORANDUM OPINION

          This is an appeal from the denial of forensic DNA testing of evidence.  Tex. Code Crim. Proc. arts. 64.03, .05 (Vernon 2006 & Supp. 2009).  The brief submitted by appellant Adrian Thomas’s court-appointed counsel states his professional opinion that there are no arguable grounds for reversal on appeal and that any appeal would, therefore, be wholly frivolous.  See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967).  Counsel’s brief meets the minimum requirements by presenting a professional evaluation of the record and stating why there are no arguable grounds for reversal on appeal.  See Broadnax v. State, 473 S.W.2d 468, 469 (Tex. Crim. App. 1971) (citing Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969) (plurality op.)).  Thomas has filed a pro se response.  The State has waived its opportunity to file an appellee’s brief.

          When this Court receives an Anders brief from a defendant’s court‑appointed attorney who asserts that an appeal would be wholly frivolous, we must determine that issue independently by conducting our own review of the entire record.  Anders, 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”); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).  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).

          Our role is limited to determining whether arguable grounds for appeal exist.  Id. at 827.  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.  Id.  The trial court must then either appoint another attorney to present all arguable grounds for appeal or, if the defendant wishes, allow the defendant to proceed pro se.  Id.  We do not rule on the ultimate merits of issues raised by defendant in his pro se response.  Id.  If we determine that there are arguable grounds for appeal, defendant is entitled to have new counsel 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, determined that the appeal is wholly frivolous, and concluded there is no reversible error.  See id. at 826.  The holding that there are no arguable grounds for appeal is subject to challenge by a defendant by a petition for discretionary review filed in the Court of Criminal Appeals.  Id. at 827 & n.6.

          In accordance with Anders, 386 U.S. at 744–45, 87 S. Ct. at 1400, and Bledsoe, 178 S.W.3d at 826–27, we have reviewed the record, Thomas’s appointed counsel’s Anders brief, and Thomas’s pro se response to that brief, and determine that the appeal is wholly frivolous and conclude that no reversible error exists.  Having reached that conclusion, we affirm the order of the trial court denying DNA testing and grant Thomas’s appointed counsel’s motion to withdraw.  Appointed counsel still has a duty to (1) send Thomas a copy of the opinion and judgment in this case, (2) notify Thomas of any upcoming appellate deadlines not previously disclosed (e.g., to file a pro se motion for rehearing or petition for discretionary review), (3) inform Thomas that he may, on his own, file a pro se petition for discretionary review in the Court of Criminal Appeals under Texas Rule of Appellate Procedure 68, and (4) file with the Clerk of this Court within five days from the date of this opinion the documents required by Texas Rules of Appellate Procedure 6.5(c) and 48.4.  See Bledsoe, 178 S.W.3d at 827 & n.6; Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997); Stephens v. State, 35 S.W.3d 770, 771–72 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

                                                                   Michael Massengale

                                                                   Justice

Panel consists of Justices Jennings, Alcala, and Massengale.

 Do not publish.  Tex. R. App. P. 47.2(b).