Freddie Lee Wallace v. State

• Court: Court of Appeals of Texas
• Decided: August 5, 2009
• Docket: 10-08-00357-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-08-00357-CR

FREDDIE LEE WALLACE, Appellant v.

THE STATE OF TEXAS, Appellee

From the 272nd District Court Brazos County, Texas Trial Court No. 05-03424-CRF-272

MEMORANDUM OPINION

Freddie Lee Wallace pled guilty without a plea bargain to the offense of

aggravated sexual assault. TEX. PENAL CODE ANN. § 22.021 (Vernon Supp. 2008). After

a hearing on punishment to the court, the trial court sentenced Wallace to life in prison.

We affirm.

Wallace's appellate counsel filed an Anders brief and a motion to withdraw as

counsel. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

Counsel concludes that the appeal is frivolous. Wallace was informed of the right to file a pro se brief or other response, and

Wallace has filed one. However, we review Wallace’s brief solely to determine if there

are any arguable grounds for appeal. Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim.

App. 2005). See also In re Schulman, 252 S.W.3d 403, 409 n. 23 (Tex. Crim. App. 2008).

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 at 407.

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

proceedings, . . . decide whether the case is wholly frivolous." Anders at 744; accord

Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991); Coronado v. State, 996

S.W.2d 283, 285 (Tex. App.—Waco 1999, order) (per curiam), disp. on merits, 25 S.W.3d

806 (Tex. App.—Waco 2000, pet. ref'd). 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." McCoy, 486 U.S. at 436. An appeal is not

wholly frivolous when it is based on "arguable grounds." Stafford, 813 S.W.2d at 511.

After a review of the briefs and the entire record in this appeal, we determine the

appeal to be wholly frivolous. See Bledsoe v. State, 178 S.W.3d at 826-27. Accordingly,

we affirm the trial court's judgment.

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

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

Wallace v. State Page 2 discretionary review or Wallace must file a pro se petition for discretionary review. Any

petition for discretionary review must be filed within thirty days from the date of either

this opinion or the last timely motion for rehearing that was overruled by this Court.

See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with this

Court, after which it will be forwarded to the Texas Court of Criminal Appeals along

with the rest of the filings in this case. See TEX. R. APP. P. 68.3. Any petition for

discretionary review should comply with the requirements of Rule 68.4 of the Texas

Rules of Appellate Procedure. See TEX. R. APP. P. 68.4. See In re Schulman, 252 S.W.3d

403, 409 n.22 (Tex. Crim. App. 2008) (citing Glover v. State, No. 06-07-00060-CR, 2007

Tex. App. LEXIS 9162 (Tex. App.—Texarkana, Nov. 20, 2007, pet. ref’d) (not designated

for publication)).

Counsel's request that he be allowed to withdraw from representation of Wallace

is granted. Additionally, counsel must send Wallace a copy of our decision, notify

Wallace 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 In re Schulman, 252 S.W.3d at 409 n. 22.

TOM GRAY Chief Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed August 5, 2009 Do not publish [CR25]

Wallace v. State Page 3