Chester McGee v. State

Opinion

Opinion issued October 24, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-11-00937-CR ——————————— CHESTER MCGEE, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from 155th District Court Waller County, Texas Trial Court Cause No. 090213116

MEMORANDUM OPINION

A jury convicted appellant, Chester McGee, of the offense murder and

assessed punishment of confinement for 37 years. See TEX. PENAL CODE ANN.

§.19.02(b)(1) (West Supp. 2012). The trial court entered an affirmative finding on

the use or exhibition of a deadly weapon. Appellant’s appointed counsel on appeal has filed a motion to withdraw,

along with an Anders brief, stating that the record presents no reversible error and

that, therefore, the appeal is frivolous. See Anders v. California, 386 U.S. 738, 87

S. Ct. 1396 (1967). Counsel’s brief meets the Anders requirements by presenting a

professional evaluation of the record. See id.; see also High v. State, 573 S.W.2d

807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has thoroughly

reviewed the record and that he is unable to advance any grounds of error that

warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; In re Schulman,

252 S.W.3d 403, 408 (Tex. Crim. App. 2008); Mitchell v. State, 193 S.W.3d 153,

154 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

Counsel’s brief reflects that he delivered a copy of the brief to appellant and

has informed him of his right to examine the appellate record and to file a

response. See Schulman, 252 S.W.3d at 408. Appellant has not filed a pro se

response. The State filed a waiver of its opportunity to file an appellee’s brief.

We have independently reviewed counsel’s brief and the entire record. We

conclude that no reversible error exists in the record, that there are no arguable

grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S.

at 744, 87 S. Ct. at 1400; Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App.

2009) (considering whether there are “arguable grounds” for review); Bledsoe v.

State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (emphasizing that reviewing

2 court—and not counsel—determines, after full examination of proceedings,

whether the appeal is wholly frivolous); Mitchell, 193 S.W.3d at 155. An appellant

may challenge a holding that there are no arguable grounds for appeal by filing a

petition for discretionary review in the Court of Criminal Appeals. See Bledsoe,

178 S.W.3d 827 & n.6.

We affirm the judgment of the trial court and grant counsel’s motion to

withdraw.1 Attorney Clint F. Sare must immediately send the notice required by

Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice with the

Clerk of this Court. See TEX. R. APP. P. 6.5(c).

PER CURIAM

Panel consists of Justices Keyes, Higley, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).

1 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, 826–27 (Tex. Crim. App. 2005). 3