

NO. 07-10-0011-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL A
 
 NOVEMBER 9, 2010

 
 

 
 
BERNIE MAC WALL AKA BERNIE MACK WALL, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 
 

 
 FROM THE 355TH DISTRICT
COURT OF HOOD COUNTY;
 
NO. CR11138; HONORABLE RALPH H. WALTON, JR., JUDGE

 
 

 
Before CAMPBELL and HANCOCK and PIRTLE,
JJ.
 
 
MEMORANDUM OPINION
            Appellant, Bernie
Mac Wall a/k/a Bernie Mack Wall, was convicted by a jury of attempted
kidnapping, enhanced by prior felony convictions, for aggravated sexual assault
by threats of violence and force, burglary of a vehicle, and theft from a
person.[1]  He was sentenced to twenty years confinement
and fined ten thousand dollars.  In
presenting his appeal, counsel has filed an Anders[2]
brief in support of a motion to withdraw. 
We grant counsel's motion and affirm.
            In support of his motion to
withdraw, counsel certifies he has conducted a conscientious examination of the
record and, in his opinion, the record reflects no potentially plausible basis
to support an appeal.  Anders v. California, 386 U.S. 738,
744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex.Crim.App. 2008).  Counsel candidly discusses why, under the
controlling authorities, the appeal is frivolous.  See High
v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978).  Counsel has also demonstrated that he has
complied with the requirements of Anders
and In re Schulman by (1) providing a
copy of the brief to Appellant, (2) notifying him of his right to file a pro se response if he desired to do so,
and (3) informing him of his right to file a pro se petition for discretionary review.  In re Schulman, 252 S.W.3d at 408.[3]  Neither the State nor Appellant filed a
response to counsel's brief. 
            By his Anders brief, counsel raises two arguable issues:  (1) whether the evidence is legally and
factually sufficient to support the trial court's judgment[4] and (2) whether the trial
court erred by permitting a state jail felony offense to be punished as a
second degree felony.  Counsel then
candidly reviews each arguable issue and explains why no reversible error is
presented.   
            We have reviewed counsel's arguments
and we have independently examined the entire record to determine whether there
are any non-frivolous issues which might support the appeal.  See
Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 S.Ct. 346, 102 L.Ed.2d
300 (1988); In re Schulman, 252
S.W.3d at 409; Stafford v. State, 813
S.W.2d 503, 511 (Tex.Crim.App. 1991).  We
have found no such issues.  See Gainous v. State, 436
S.W.2d 137, 138 (Tex.Crim.App. 1969). 
After reviewing the record and counsel's brief, we agree with counsel
that there are no plausible grounds for appeal. 
See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005).
            Accordingly, counsel's motion to
withdraw is granted and the trial court's judgment is affirmed.     
 
                                                                                                Patrick
A. Pirtle
                                                                                                      Justice  
Do not publish.         
            
            
            
            




[1]See Tex. Penal Code Ann. § 20.03 (Vernon
2003); Id. at §§ 12.35(c), 12.42(a)(3) (Vernon Supp. 2010). 


[2]Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


[3]Notwithstanding
that Appellant was informed of his right to file a pro se petition for discretionary review upon execution of the Trial Court's Certification of Defendant's
Right of Appeal, counsel must comply with Rule 48.4 of the Texas Rules of
Appellate Procedure which provides that counsel shall within five days after
this opinion is handed down, send Appellant a copy of the opinion and judgment
together with notification of his right to file a pro se petition for discretionary review.  Tex. R. App. P. 48.4.  See
In re Schulman, 252 S.W.2d at 408 n.22 & 411 n.35.


[4]See Brooks v. State, No. PD-0210-09, 2010 Tex. Crim. App. LEXIS 1240, at *57 (Tex.Crim.App.
Oct. 6, 2010) (abandoning factual sufficiency as an evidentiary sufficiency
standard).


