Gregory Roy Johnson v. State

Opinion

Opinion issued November 26, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00481-CR ——————————— GREGORY ROY JOHNSON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court Harris County, Texas Trial Court Case No. 1333440

MEMORANDUM OPINION

Appellant, Gregory Roy Johnson, was tried by a jury and convicted of

evading arrest, which is a state-jail felony when, as here, the defendant has a prior

conviction for evading arrest. See TEX. PENAL CODE ANN. § 38.04(a), (b)(1) (West 2011). Appellant was sentenced by the jury to 20 years’ confinement and a

$10,000 fine, which was within the permissible statutory range.1

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). 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 A state-jail felony is punishable by confinement in a state jail for 180 days to 2 years, and a fine not to exceed $10,000. TEX. PENAL CODE ANN. § 12.35(a) (West 2011). If a defendant has two or more prior felony convictions, however, a state- jail felony is punished as a second-degree felony, Id. § 12.425(b), with a range of confinement for a term of not more than 20 years or less than 2 years, and a fine not to exceed $10,000. Id. § 12.33. Appellant stipulated to nine prior felony convictions. 2 (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 (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. Appellant filed a pro se 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, as well as the appellant’s

pro se response, and 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 withdraw2 and affirm the trial court’s

judgment. Kurt B. Wentz must immediately send the notice required by Texas

2 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 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 Chief Justice Radack and Justices Bland and Huddle.

Do not publish.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