                                  NO. 07-07-0208-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                    MAY 7, 2008
                          ______________________________

                         EDWARD W. BARNETT, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

             FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

          NO. 2006-411833; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
                        _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant Edward W. Barnett appeals his conviction for aggravated robbery1 and

sentence of forty years confinement in prison. His appointed appellate counsel has filed

a motion to withdraw from representation and an Anders2 brief. We will grant counsel’s

motion to withdraw and affirm the judgment of the trial court.




      1
          Tex. Penal Code Ann. § 29.03 (Vernon 2003).
      2
          Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 493 (1967).
       Without a plea agreement for sentencing, appellant plead guilty to robbing EZ

Money, a Lubbock cash advance establishment, at gunpoint. The court accepted the plea

and ordered a presentence investigation report (PSI). After the community supervision

officer prepared the PSI, the court conducted the punishment hearing in appellant’s case.

At the hearing, the State presented evidence of the robbery to which appellant pleaded

guilty and appellant offered mitigation evidence including the testimony of a psychologist.

The court then sentenced appellant to confinement for forty years in the Texas Department

of Corrections Institutional Division. Appellant filed a motion for new trial, which the court

denied, and timely perfected this appeal.


       In his motion to withdraw and Anders brief, appellant’s court-appointed counsel

certifies he diligently reviewed the record and, in his professional opinion, under the

controlling authorities and facts of the case, no reversible error or legitimate grounds for

predicating a non-frivolous appeal exist. The brief discusses the procedural history of the

case including the sentencing hearing. Counsel discusses a potential appellate issue,

explaining why he finds it without merit. He also certifies that a copy of the Anders brief

was served on appellant, along with notice of appellant’s right to review the record and file

a pro se response. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.–Waco 1994, pet.

ref'd). Appellant filed a pro se response to counsel’s Anders brief. The State also has filed

a brief.


       When court-appointed counsel files a motion to withdraw and a brief in which he

concludes no arguable grounds for appeal exist, we review the record and make an



                                              2
independent determination. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (the appellate

court, and not counsel, after full examination of the record, determines whether the case

is “wholly frivolous”); accord, Bledsoe v. State, 178 S.W.3d 824, 826 (Tex.Crim.App. 2005);

Mitchell v. State, 193 S.W.3d 153, 155 (Tex.App.–Houston [1st Dist.] 2006, no pet.). We

consider an appellant’s pro se response to an Anders brief, but we do not rule on the

ultimate merits of the response. See Bledsoe, 178 S.W.3d at 826-27 (an appellant would

be denied meaningful assistance of appellate counsel were the court of appeals to address

and reject the merits of an appellant’s pro se response to an Anders brief); Mitchell, 193

S.W.3d at 155-56.


       If from our review of the record we find arguable grounds for appeal, we will abate

the appeal, remand the case to the trial court, and allow withdrawal of court appointed

counsel. Bledsoe, 178 S.W.3d at 826-27; Mitchell, 193 S.W.3d at 156. The trial court

must then appoint new appellate counsel to present all arguable appellate grounds. See

Bledsoe, 178 S.W.3d at 826-27. Only after new appellate counsel has briefed the issues

may we address the merits of the issues raised. Id. at 827. If we determine from our

independent review of the entire record that the appeal is wholly frivolous, we may affirm

the trial court's judgment by issuing an opinion explaining that we reviewed the record and

found no arguable grounds for appeal. Bledsoe, 178 S.W.3d at 826-27; Mitchell, 193

S.W.3d at 156. An appellant may challenge a court of appeal’s finding of no arguable

grounds for appeal by a petition for discretionary review filed in the Court of Criminal

Appeals. Bledsoe, 178 S.W.3d at 827 & n.6; Mitchell, 193 S.W.3d at 156.




                                            3
       In his Anders brief, counsel identifies and discusses the potential issue that

extraneous misconduct evidence not proved beyond a reasonable doubt was considered

by the trial court in assessing punishment. However, counsel concludes pursuit of this

issue on appeal would be frivolous, and we agree.


       In his pro se response to counsel’s brief, appellant presents three issues arising

from a claimed involuntary plea of guilty and ineffective assistance of trial counsel. On the

record presented, we find none of appellant’s issues are arguably meritorious.


       Having considered the Anders brief of counsel and appellant’s pro se response, and

having reviewed the entire record, we agree with appellant’s counsel on appeal that this

record presents no arguable grounds for appeal.          Accordingly, counsel’s motion to

withdraw is granted3 and the judgment of the trial court is affirmed.




                                                  James T. Campbell
                                                       Justice


Do not publish.




       3
         Counsel shall, within five days after the opinion is handed down, send his client
a copy of the opinion and judgment, along with notification of the defendant's right to file
a pro se petition for discretionary review. See Tex. R. App. P. 48.4.


                                             4
