James Earl Brown v. State

• Court: Court of Appeals of Texas
• Decided: August 5, 2009
• Docket: 10-08-00180-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-08-00180-CR

JAMES EARL BROWN, Appellant v.

THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2007-1993-C2

MEMORANDUM OPINION

James Earl Brown was convicted of delivery of cocaine. TEX. HEALTH & SAFETY

CODE ANN. § 481.112(b) (Vernon 2003). At punishment, Brown pled true to two

enhancements and was sentenced to 20 years in prison. We affirm.

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

counsel.1 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.

1 Counsel has been allowed to withdraw in a separate order. Brown was informed of the right to file a pro se brief or other response, and

Brown has filed one. However, we review Brown’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 Brown wish to seek further review of this case by the Texas Court of

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

Brown v. State Page 2 discretionary review or Brown 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)).

Although Counsel has been allowed to withdraw, he must, nevertheless, send

Brown a copy of our decision, notify Brown 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]

Brown v. State Page 3