William Michael Proctor v. the State of Texas

Opinion

Opinion issued September 5, 2024

In The

Court of Appeals

For The

First District of Texas

life. On appeal, we affirmed the trial court’s judgment.2 Later, appellant filed a post-conviction motion for forensic DNA testing.3 The trial court denied appellant’s motion, and appellant timely filed a notice of appeal.4 Appellant’s appointed counsel on appeal has filed a motion to withdraw, along with a brief stating that the record presents no reversible error and the appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738 (1967).

Counsel’s brief meets the Anders requirements by presenting a professional evaluation of the record and supplying the Court with references to the record and legal authority. See id. at 744; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has thoroughly reviewed the record and is unable to advance any grounds of error that warrant reversal. See Anders, 386 U.S. at 744; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

Counsel has informed the Court that he provided appellant with a copy of his Anders brief and his motion to withdraw. Counsel also informed appellant of his right to examine the appellate record and file a response to counsel’s Anders brief. Further, counsel provided appellant with a copy of the appellate record and a form

2 See Proctor v. State, 319 S.W.3d 175 (Tex. App.—Houston [1st Dist.] 2010, pet.

struck) (published in part).

3 See TEX. CODE CRIM. PROC. ANN. art. 64.01.

4 See id. art. 64.05.

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motion to access the appellate record.5 See Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008). Appellant filed a pro se response to his counsel’s Anders brief.

We have independently reviewed the entire record, and we conclude that no reversible error exists in the record, there are no arguable grounds for review, and the appeal is frivolous. See Anders, 386 U.S. at 744 (emphasizing reviewing court— and not counsel—determines, after full examination of proceedings, whether appeal is wholly frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing court determines whether arguable grounds exist by reviewing entire record). We note that appellant may challenge a holding that there are no arguable grounds for an appeal by filing a petition for discretionary review in the Texas Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.

5 This Court also notified appellant that his appointed counsel had filed an Anders brief and a motion to withdraw and informed appellant that he had a right to examine the appellate record and file a response to his counsel’s Anders brief. And this Court provided appellant with a form motion to access the appellate record. See Kelly v.

State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008).

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Conclusion

We affirm the order of the trial court and grant appellant’s appointed counsel’s motion to withdraw.6 Attorney Nicholas Mensch must immediately send appellant the required notice and file a copy of the notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(c). We dismiss any other pending motions as moot.

Julie Countiss

Justice

Panel consists of Justices Landau, Countiss, and Guerra. Do not publish. TEX. R. APP. P. 47.2(b).

6 Appellant’s appointed counsel still has a duty to inform appellant of the result of the appeal and that appellant may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim.

App. 1997).

Footnotes

1. NO. 01-23-00474-CR ——————————— WILLIAM MICHAEL PROCTOR, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 248th District Court Harris County, Texas Trial Court Case No. 1124360 MEMORANDUM OPINION A jury found appellant, William Michael Proctor, guilty of the felony offense of capital murder,1 and the trial court assessed his punishment at confinement for 1 See TEX. PENAL CODE ANN. § 19.03(a), (b).