Robert Allen Byrd v. State

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-08-00390-CR

ROBERT ALLEN BYRD, Appellant v.

THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2007-568-C2

MEMORANDUM OPINION

Robert Allen Byrd was convicted by a jury of capital murder. TEX. PEN. CODE

ANN. § 19.03(a)(2) (Vernon 2003). The murder was alleged to have been committed in

the course of committing or attempting to commit kidnapping. TEX. PEN. CODE ANN. §

19.03(a)(2). Because the State did not seek the death penalty, Byrd was mandatorily

assessed punishment at imprisonment for life without parole in the Texas Department

of Criminal Justice – Institutional Division. TEX. PEN. CODE ANN. § 12.31(a) (Vernon

2003). We affirm. Byrd's appellate counsel filed an Anders brief and a motion to withdraw as

counsel. 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.

Byrd has filed a pro se brief. However, we review Byrd’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.

Robert Allen Byrd v. The State of Texas Page 2 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 Byrd wish to seek further review of this case by the Texas Court of

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

review or Byrd 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 also 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).1

Counsel's request that he be allowed to withdraw from representation of Byrd is

granted. Additionally, counsel must send Byrd a copy of our decision, notify Byrd of

his right to file a pro se petition for discretionary review, and send this Court a letter

1We note that counsel has an affirmative duty to ensure that the client has, at some point, been informed of his right to file a pro se PDR. The preferred mechanism for this is a letter sent to the client with the Anders brief and the motion to withdraw as counsel. In re Schulman, 252 S.W.3d 403, 408 n. 22 (Tex. Crim. App. 2008).

Robert Allen Byrd v. The State of Texas Page 3 certifying counsel’s compliance with Texas Rule of Appellate Procedure 48.4. TEX. R.

APP. P. 48.4; see also 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 September 23, 2009 Do not publish [CRPM]

Robert Allen Byrd v. The State of Texas Page 4