

Opinion issued November 10, 2011.

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-01099-CR
———————————
montrell deshun black, sr., Appellant
V.
State of
Texas, Appellee

 

 
On Appeal from the 174th District Court
Harris County, Texas

Trial Court Case No. 1220050
 

MEMORANDUM OPINION
          Appellant,
Montrell Deshun Black, Sr., pleaded guilty to the offense of burglary of a
habitation with intent to commit assault, without an agreed recommendation as
to punishment.  The trial court deferred
adjudication of guilt and place appellant on community supervision.  Subsequently, the State moved to revoke
appellant’s community supervision and for an adjudication of appellant’s guilt,
on the grounds that appellant had violated the conditions of his community
supervision.      Appellant pleaded “not true” to the State’s
allegations.  The trial court found the
allegations true, adjudged appellant guilty of the original charge, and
assessed punishment at confinement for 15 years.  The trial court certified appellant’s right to appeal, and
appellant timely filed a notice of appeal.
          Appellant’s appointed counsel on
appeal has filed a motion to withdraw and an Anders brief stating that the record presents no reversible error
and therefore the appeal is without merit and is frivolous.  See
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967).  We grant counsel’s motion to withdraw and affirm
the trial court’s judgment.
An attorney has an ethical obligation to refuse to prosecute
a frivolous appeal.  Schulman v. State, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008)
(citing McCoy v. Court of Appeals of
Wisconsin, 486 U.S. 429, 436, 108 S. Ct. 1895, 1901 (1988)).  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 with the Texas Court of Criminal Appeals; 
(2)     the
attorney has informed this Court 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 trial court’s judgment.  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).  
Here, counsel’s brief reflects that
he delivered a copy of the brief to appellant and informed him of his right to
examine the appellate record and to file a response.  See id.
at 408.  Appellant has not filed a
response.
          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 adduced at the
trial, 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
ground of error that warrants 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.).  
We have independently reviewed the
entire record, and we conclude that no reversible error exists in the record,
that there are no arguable grounds for review, and that therefore the appeal is
frivolous.  See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Garner v. State, 300 S.W.3d 763, 767
(Tex. Crim. App. 2009) (explaining that frivolity is determined by considering
whether there are “arguable grounds” for review); 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); Mitchell, 193
S.W.3d at 155.  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 827 & n.6.
          We
affirm the judgment of the trial court and grant counsel’s motion to withdraw.[1]
 Attorney Glenn J. Youngblood 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).  The Clerk of the Court is ordered to send a
copy of this opinion to Black.  We
dismiss all pending motions as moot.
PER CURIAM
Panel
consists of Chief Justice Radack and Justices Bland and Huddle.
Do
not publish.   Tex. R. App. P. 47.2(b).




[1]
          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
Texas Court of Criminal Appeals. See
Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).


