Gregory Dale Wall, Jr. v. State

Opinion

Opinion issued October 11, 2012

In The Court of Appeals For The First District of Texas

NO. 01-11-00600-CR ____________

GREGORY DALE WALL, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court Harris County, Texas Trial Court Cause No. 1299707

MEMORANDUM OPINION

A jury found appellant, Gregory Dale Wall, Jr., guilty of theft under

$1,500—third offense. Appellant pleaded true to two enhancements, and the trial

court assessed punishment at eight years’ confinement. The trial court certified that this is not a plea bargain case and that appellant has the right of appeal. Appellant

timely filed a notice of appeal.

Appellant’s court-appointed appellate counsel 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). We affirm the trial court’s judgment and grant counsel’s motion

to withdraw.

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, her obligation to her client is

to seek leave to withdraw. Id. at 407. 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 her Anders brief to her client, along with a letter explaining that the defendant has the right to file a pro se brief within 30 days, and she has ensured that her client has, at some point, been informed of his right to file a pro se petition for discretionary review; (2) the attorney has informed us that she 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).

Counsel’s brief meets the Anders requirements by presenting 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 discusses the

evidence, supplies us with references to the record, and provides us with citation to

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

that she 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.).

Appellant filed a pro se response, arguing trial counsel was ineffective

because he (1) failed to obtain a copy of the store’s surveillance tape, (2) failed to

subpoena a potential witness, (3) failed to subpoena the arresting officer, and (4) did

not call appellant to take the stand.

3 We have independently reviewed the entire record, and we conclude that no

reversible error exists, that there are no arguable grounds for review, and that

therefore the appeal is frivolous. See Schulman, 252 S.W.3d at 407 n.12

(explaining that appeal is frivolous when it does not present any argument that

could “conceivably persuade the court”); 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). 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 withdraw1 and affirm the trial court’s

judgment. Attorney Francis Bourliot 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). All pending motions are denied.

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). 4 PER CURIAM

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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