Dave Whitaker v. State

Opinion

Opinion issued January 16, 2014

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00257-CR ——————————— DAVE WHITAKER, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court Harris County, Texas Trial Court Case No. 1350821

MEMORANDUM OPINION

Appellant, Dave Whitaker, was tried by a jury and convicted of being a felon

in possession of a firearm, a third-degree felony. See TEX. PENAL CODE ANN.

§ 46.04(a), (e) (Vernon 2011). Appellant elected to have his sentence imposed by

the court rather than the jury. During the punishment phase, appellate pleaded true to two felony enhancements, rendering the punishment range “imprisonment in the

Texas Department of Criminal Justice for life, or for any term of not more than 99

years or less than 25 years.” TEX. PENAL CODE § 12.42(d). The trial court

assessed punishment at 25 years’ confinement, within the applicable punishment

range. The trial court certified that this is not a plea bargain case and that appellant

has the right to appeal. Appellant timely filed a notice of appeal.

Appellant’s counsel on appeal has filed a motion to withdraw, along with an

Anders brief stating that the record presents no reversible error and therefore the

appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738,

87 S. Ct. 1396 (1967).

An attorney has an ethical obligation to refuse to prosecute a frivolous

appeal. In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). If an

appointed attorney finds a case to be wholly frivolous, his obligation to his client is

to seek leave to withdraw. Id. Counsel’s obligation to the appellate court is to

assure it, through an Anders brief, that, after a complete review of the record, the

request to withdraw is well-founded. Id.

We may not grant the motion to withdraw until:

(1) the attorney has sent a copy of his Anders brief to his client along with a letter explaining that the defendant has the right to file a pro se brief within 30 days, and he has ensured that his client has, at some point, been informed of his right to file a pro se PDR;

2 (2) the attorney has informed us that he has performed the above duties; (3) the defendant has had time in which to file a pro se response; and (4) we have reviewed the record, the Anders brief, and any pro se brief.

See id. at 408–09. If we agree that the appeal is wholly frivolous, we will grant the

attorney’s motion to withdraw and affirm the trial court’s judgment. See Garner v.

State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009). If we conclude that arguable

grounds for appeal exist, we will grant the motion to withdraw, abate the case, and

remand it to the trial court to appoint new counsel to file a brief on the merits. See

Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).

Here, counsel’s brief reflects that he delivered a copy of the brief to

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

a response. See Schulman, 252 S.W.3d at 408. More than 30 days have passed,

and appellant has not filed a pro se response. See id. at 409 n.23 (adopting 30-day

period for response).

Counsel’s brief meets the Anders requirements in that it presents a

professional evaluation of the record. See Anders, 386 U.S. at 744, 87 S. Ct. at

1400; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978).

Counsel supplies us with references to the record and provides us with citation to

legal authorities. Counsel indicates that he has thoroughly reviewed the record and

3 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; Mitchell v. State, 193 S.W.3d 153, 154

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

We have independently reviewed the entire record, and 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) (explaining

that frivolity is determined by considering whether there are “arguable grounds”

for review); Bledsoe, 178 S.W.3d at 826–27 (emphasizing that reviewing court—

and not counsel—determines, after full examination of proceedings, whether the

appeal is wholly frivolous); Mitchell, 193 S.W.3d at 155. Although we may issue

an opinion explaining why the appeal lacks arguable merit, we are not required to

do so. See Garner, 300 S.W.3d at 767. 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 at 827 & n.6.

We grant counsel’s motion to withdraw1 and affirm the trial court’s

judgment. Attorney J. Sidney Crowley, Jr., must immediately send the notice

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, 178 S.W.3d at 826–27. 4 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 Radack, Bland, and Huddle.

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