Michael Anthony Lopez v. State

Opinion

IN THE

TENTH COURT OF APPEALS

No. 10-06-00262-CR

MICHAEL ANTHONY LOPEZ, Appellant

v.

THE STATE OF TEXAS, Appellee

From the 361st District Court Brazos County, Texas

Trial Court No. 06-00154-CRF-361

MEMORANDUM OPINION

Michael Anthony Lopez was convicted of first-degree murder. See TEX. PENAL CODE ANN. § 19.02 (Vernon 2003). He was sentenced to 75 years in prison. Lopez appeals. Counsel for Lopez filed an Anders brief. See Anders v. California, 386 U.S. 738 (1967). We affirm.

Counsel informed Lopez of the right to file a brief, and Lopez has filed one. The State waived filing a response. Counsel’s brief reviews the propriety of not objecting to the State’s evidence, the legal and factual sufficiency of the evidence, and the correctness of the sentence within the legal range of punishment. 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 at 744. Counsel concluded that the appeal had no arguable issues. Lopez’s brief does not clearly identify any arguable issues.

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 (1988). Arguments are frivolous when they “cannot conceivably persuade the court.” Id. at 436. An appeal is not wholly frivolous when it is based on “arguable grounds.” Stafford at 511.

After a review of the entire record, we determine that the appeal is wholly frivolous. Accordingly, we affirm the trial court’s judgment.

Counsel’s request that he be allowed to withdraw from representation of Lopez is granted. Counsel must, nevertheless, advise Lopez of our decision and of the right to file a petition for discretionary review. See Ibarra v. State, 226 S.W.3d 481, 482-483 (Tex. App.—Waco 2006, no pet.); see also Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim. App. 2006).

TOM GRAY

Chief Justice

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Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed November 5, 2008 Do not publish [CRPM]

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