Billy Joe Harris v. State

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-12-00124-CR

BILLY JOE HARRIS, Appellant v.

THE STATE OF TEXAS, Appellee

From the 278th District Court Leon County, Texas Trial Court No. CM-11-50

MEMORANDUM OPINION

Billy Joe Harris appeals from a conviction for the offense of burglary of a

habitation. TEX. PEN. CODE ANN. § 30.02 (West 2011). Harris was sentenced to ninety-

nine years in prison to be served consecutively after completion of a prior sentence.

Harris’s appellate counsel has filed an Anders brief in this appeal. See Anders v.

California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Harris was informed of

his right to submit a brief or other response on his own behalf and has filed a pro se

response to the Anders brief complaining of ineffective assistance of his trial counsel. Counsel asserts in his Anders brief that he has thoroughly and conscientiously

reviewed the complete reporter’s record and clerk’s record in search for potentially

meritorious issues on appeal and, after due diligence, found that no non-frivolous

issues exist. Counsel specifically discusses the authority of the prosecutor of another

county to assist in the prosecution of this case, ineffective assistance of counsel, the

sufficiency of the evidence regarding the denial of his plea of insanity, and the legality

of the cumulation of his sentence with his prior conviction. Counsel concludes that

there are no non-frivolous issues to assert on appeal. Counsel's brief evidences a

professional evaluation of the record for error, and we conclude that counsel performed

the duties required of appointed counsel. See Anders, 386 U.S. at 744; High v. State, 573

S.W.2d 807, 812 (Tex. Crim. App. 1978); see also In re Schulman, 252 S.W.3d 403, 407 (Tex.

Crim. App. 2008).

In reviewing an Anders appeal, we must, "after a full examination of all the

proceedings ... decide whether the case is wholly frivolous." See Anders, 386 U.S. at 744;

accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). 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, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (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, 813

S.W.2d at 511.

Harris v. State Page 2 After reviewing counsel’s brief, Harris's pro se response regarding his complaints

of ineffective assistance of trial counsel, and the entire record in this appeal, we

determine the appeal to be wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27

(Tex. Crim. App. 2005). Accordingly, we affirm the trial court's judgment.

Should Harris wish to seek further review of this case by the Texas Court of

Criminal Appeals, he must either retain an attorney to file a petition for discretionary

review or must file a pro se petition for discretionary review. Any petition for

discretionary review must be filed within thirty days from the date of this opinion or

the last timely motion for rehearing or timely motion for en banc reconsideration was

overruled by this Court. See TEX. R. APP. P. 68.2. Any petition and all copies of the

petition for discretionary review must be filed with the Clerk of the Court of Criminal

Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review must comply

with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX.

R. APP. P. 68.4. See also In re Schulman, 252 S.W.3d at 409 n.22.

Counsel's request to withdraw from representation of Harris is granted, and

counsel is permitted to withdraw from representing Harris. Additionally, counsel must

send Harris a copy of our decision, notify him of his right to file a pro se petition for

discretionary review, and send this Court a letter certifying counsel's compliance with

Texas Rule of Appellate Procedure 48.4. TEX. R. APP. P. 48.4; see also In re Schulman, 252

S.W.3d at 409 n.22.

Harris v. State Page 3 TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed March 27, 2014 Do not publish [CRPM]

Harris v. State Page 4