Raymond John Daniels v. State

Opinion

Opinion issued July 14, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-01154-CR

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Raymond John Daniels, Appellant

V.

The State of Texas, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Case No. 1197625

MEMORANDUM OPINION

          Appellant, Raymond John Daniels, pleaded guilty, without an agreed recommendation on punishment, to the first degree felony offense of aggravated assault on a public servant.[1]  The trial court accepted appellant’s guilty plea and assessed punishment at thirty years’ confinement.  The trial court certified that appellant had the right to appeal, and 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 judgment of the trial court 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, his obligation to his 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 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 petition for discretionary review;

(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 judgment of the trial court.  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).  We do not rule on the ultimate merits of the issues raised by the appellant in his pro se response.  Id. at 827.  “Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised.”  Id.

          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 he has thoroughly reviewed the record and 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.).

          Appellant filed a pro se response, arguing that (1) neither defense counsel nor the district attorney believed that it was necessary for appellant to take a “cognitive test,” despite knowing that he suffered from bipolar disorder, (2) appellant may not have been competent or capable of making rational, intelligent, or educated decisions due to his illness, (3) as a result of his mental illness and injuries sustained during the commission of the offense, appellant was “naturally paranoid” and could not have made a “competent or rational decision” regarding a plea bargain, (4) defense counsel failed to “fulfill his fiduciary duty” to appellant by not bringing appellant’s mental illness to the trial court’s attention, and (5) appellant did not receive a “fair and just punishment.”

          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 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 at 827 & n.6.

          We grant counsel’s motion to withdraw[2] and affirm the judgment of the trial court.  Attorney Thomas J. Lewis 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 other pending motions are denied.

PER CURIAM

Panel consists of Justices Keyes, Higley, and Bland.

Do not publish.   Tex. R. App. P. 47.2(b).

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[1]           See Tex. Penal Code Ann. §§ 22.02(a), (b)(2)(B) (Vernon Supp. 2010).

[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 Court of Criminal Appeals.  See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005); Stephens v. State, 35 S.W.3d 770, 771–72 (Tex. App.—Houston [1st Dist.] 2000, no pet.).