Elmer Ray Robinson v. State

Opinion

Opinion issued July 9, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00401-CR ——————————— ELMER RAY ROBINSON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court Harris County, Texas Trial Court Cause No. 969154

MEMORANDUM OPINION

Appellant, Elmer Ray Robinson, was convicted of aggravated assault with a

deadly weapon, was found to have previously been convicted of two felony

offenses, and was sentenced to 75 years in prison. We affirmed the trial court’s

judgment in an unpublished opinion. See Robinson v. State, No. 01-04-00717-CR, 2008 WL 2340384 (Tex. App.—Houston [1st Dist.] June 5, 2008, no pet.) (not

designated for publication). Appellant then filed a post-conviction motion for

forensic DNA testing. See TEX. CODE CRIM. PROC. ANN. art. 64.01(a-1) (West

Supp. 2012). The trial court denied the motion. See id. art. 64.03(a) (West Supp.

2012). Appellant timely filed a notice of appeal. See id. art. 64.05 (West 2006).

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

therefore the appeal is without merit and 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 and supplying us with references to the record and legal

authority. 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 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;

Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no

pet.).

We have independently reviewed the entire record in this appeal, 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

2 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not

counsel—determines, after full examination of proceedings, whether appeal is

wholly frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009)

(reviewing court must determine whether arguable grounds for review exist);

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

Mitchell, 193 S.W.3d at 155 (reviewing court determines whether arguable

grounds exist by reviewing entire record). 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 affirm the judgment of the trial court and grant counsel’s motion to

withdraw.1 Attorney Kelly Ann Smith 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 Jennings, Brown, and Huddle.

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 Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). 3