Gregory Allen Truitt v. State

Opinion

Opinion issued August 30, 2012

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-11-00187-CR ——————————— GREGORY ALLEN TRUITT, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court Harris County, Texas Trial Court Case No. 1223913

MEMORANDUM OPINION

Gregory Allen Truitt pleaded not guilty to the offense of aggravated robbery

with a deadly weapon. See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011). The

jury found him guilty, and, after Truitt pleaded true to the enhancement allegation that he had previously been convicted of the felony offense of aggravated robbery, the jury

assessed punishment of 50 years in prison. Truitt 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). We grant counsel’s motion to withdraw and affirm the trial

court’s judgment.

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) 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

2 (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 brief. 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

that he is unable to advance any grounds of error that warrant reversal. See

3 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, 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 827 & n.6.

We grant counsel’s motion to withdraw* and affirm the appeal. Attorney

David L. Garza, 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).

* 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). 4 PER CURIAM Panel consists of Justices Bland, Massengale, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).