Walter Seymore, Jr. v. State

Opinion

Opinion issued October 4, 2012.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-11-00988-CR ——————————— WALTER SEYMORE, JR., Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court Harris County, Texas Trial Court Case No. 1222650

MEMORANDUM OPINION

A trial court convicted Walter Seymore, Jr. of murder and assessed

punishment at twenty-five years’ confinement. See TEX. PENAL CODE ANN. § 19.02

(West 2011). Seymore’s court-appointed counsel has filed a motion to withdraw and an Anders brief in which he states that no valid grounds for appeal exist and

that any appeal would be frivolous. See Anders v. California, 386 U.S. 738, 744,

87 S. Ct. 1396, 1400 (1967). Seymore’s pro se response challenges his appellate

counsel’s recommendation and raises arguments relating to (1) improper use of

evidence of prior convictions, (2) ineffective assistance of counsel, and (3) an

alleged failure to issue Miranda rights. Because we conclude that appellant has

raised no arguable grounds for appeal, we grant counsel’s motion to withdraw and

affirm the judgment of the trial court.

Background

In July 2009, the State charged Seymore by indictment with murder, a first

degree felony offense punishable by five to ninety-nine years’ imprisonment. See

TEX. PENAL CODE ANN. §§ 12.32(a), 19.02 (West 2011). Seymore pled not guilty.

After a bench trial, the trial court found Seymore guilty of the offense as charged

and sentenced him to twenty-five years’ confinement. The trial court certified

Seymore’s right to appeal, and he timely filed his notice of appeal.

Discussion

The brief submitted by Seymore’s court-appointed counsel states his

professional opinion that there are no arguable grounds for reversal on appeal and

that any appeal would, therefore, lack merit. See Anders, 386 U.S. at 744, 87 S. Ct.

at 1400. Counsel’s brief presents counsel’s professional evaluation of the record

2 and states why he contends there are no arguable grounds for reversal on appeal.

See id.; see also In re Schulman, 252 S.W.3d 403, 406–07 (Tex. Crim. App. 2008).

Counsel sent Seymore a letter informing him of his conclusion that there was no

reversible error that could be raised on his behalf on appeal, explaining his analysis

in reaching that conclusion, and stating that he filed an Anders brief with the Court.

He also informed Seymore of his right to examine the record and file a pro se brief.

He provided Seymore with a copy of his Anders brief, his motion to withdraw, and

rule 68 of the Texas Rules of Appellate Procedure. Seymore filed a pro se brief

with this court.

When we receive an Anders brief from a defendant’s court-appointed

attorney who asserts that no arguable grounds for appeal exist, we must determine

that issue independently by conducting our own review of the entire record. See

Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court, and

not counsel, determines, after full examination of proceedings, whether case is

“wholly frivolous”); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.

1991). In conducting our review, we consider Seymore’s pro se response to his

counsel’s Anders brief. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim.

App. 2005). If our independent review of the record leads us to conclude that the

appeal is wholly frivolous, we may affirm the trial court’s judgment by issuing an

opinion in which we explain that we have reviewed the record and find no

3 reversible error. Id. at 828. Seymore may challenge the holding that there are no

arguable grounds for appeal by petitioning for discretionary review in the Court of

Criminal Appeals. Id. at 827 & n.6.

Conclusion

In accordance with Anders and Bledsoe, we have reviewed the record, the

Anders brief from Seymore’s appointed counsel, and Seymore’s pro se response to

the brief. We conclude that there are no arguable grounds for reversal on appeal.

We therefore affirm the judgment of the trial court and grant appointed counsel’s

motion to withdraw.1

Harvey Brown Justice

Panel consists of Justices Keyes, Massengale and Brown.

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

1 Appointed counsel still has a duty to inform Seymore of the result of this appeal and that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6; Ex Parte Wilson, 956 S.W.2d 25, 26–27 (Tex. Crim. App. 1997); Stephens v. State, 35 S.W.3d 770, 771–72 (Tex. App.—Houston [1st Dist.] 2000, no pet.).