                                  IN THE
                          TENTH COURT OF APPEALS

                                   No. 10-08-00064-CR

STACEY KIRVEN,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                            From the 77th District Court
                             Limestone County, Texas
                              Trial Court No. 11381-A


                            CONCURRING OPINION


      This is an Anders appeal. The brief in support of counsel’s motion to withdraw is

only 13 pages. It is well done and is more than adequate to allow the Court to perform

the analysis to reach the conclusion we are required to reach in a proper Anders appeal;

that counsel has performed a professional evaluation of this record and concluded there

are no issues of arguable merit.

      Where the Court errs in its 15 page opinion is in reviewing the merits of each of

the “arguable issues of law” identified by appointed counsel, each of which is

determined by appointed counsel to be wholly frivolous and without arguable merit. It

is not our duty to review the merits of those issues. Bledsoe v. State, 178 S.W.3d 824, 827
(Tex. Crim. App. 2005) (“Only after the issues have been briefed by new counsel may the

court of appeals address the merits of the issues raised.” (Emphasis added.)). Rather,

our duty is to conduct an independent review of the entire record, without limiting our

review to only those areas discussed by counsel. Stafford v. State, 813 S.W.2d 503, 511

(Tex. Crim. App. 1991); Villanueva v. State, 209 S.W.3d 239, 249 (Tex. App.—Waco 2006,

no pet.)(Gray, C.J., concurring); accord Garner v. State, No 10-05-00218-CR, 2007 Tex.

App. LEXIS 4246, *17-19 (Tex. App.—Waco May 30, 2007, pet. granted)(Gray, C.J.,

dissenting). In fact, by spending an excessive amount of time and focusing on those

areas, we deprive the defendant of the fundamental protection of the Anders procedure

of conducting an independent review of the entire record.

        I propose that the following is a proper balance in an opinion wherein we

conclude the attorney has conducted the professional evaluation of the record and we

have conducted our independent examination.

               A jury convicted Stacey Kirven of aggravated robbery and
        kidnapping. See TEX. PENAL CODE ANN. §§ 29.03 and 20.03 (Vernon 2003).
        The trial court sentenced Kirven to fifty years in prison for aggravated
        robbery and twenty years in prison for kidnapping. Kirven’s appellate
        counsel filed an Anders brief. See Anders v. California, 386 U.S. 738, 87 S. Ct.
        1396, 18 L. Ed. 2d 493 (1967).

                Counsel informed Kirven of the right to file a brief, but Kirven did
        not file one. Because of Kirven’s inaction, the State was not obligated to
        file a response. See Wilson v. State, 955 S.W.2d 693, 697 (Tex. App.—Waco
        1997, order). Counsel’s brief reviews the legal and factual sufficiency of
        the evidence, potential error during voir dire, potential error during the
        trial on the merits, and potential jury charge error. Counsel concludes that
        the appeal is frivolous.

               Counsel’s brief evidences a professional evaluation of the record for
        error, and we conclude that counsel performed the duties required of
        appointed counsel. See Anders at 744; High v. State, 573 S.W.2d 807, 812

Kirven v. State                                                                            Page 2
        (Tex. Crim. App. 1978); see also In re Schulman, 252 S.W.3d 403, 407 (Tex.
        Crim. App. 2008).

                In reviewing an Anders appeal, we must, “after a full examination
        of all the proceedings, . . . decide whether the case is wholly frivolous.”
        Anders at 744; accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim.
        App. 1991); Coronado v. State, 996 S.W.2d 283, 285 (Tex. App.—Waco 1999,
        order) (per curiam), disp. on merits, 25 S.W.3d 806 (Tex. App.—Waco 2000,
        pet. ref’d). An appeal is “wholly frivolous” or “without merit” when it
        “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486 U.S. 429,
        439 n.10 (1988). Arguments are frivolous when they “cannot conceivably
        persuade the court.” Id. at 436. An appeal is not wholly frivolous when it
        is based on “arguable grounds.” Stafford at 511.

               After a review of the entire record in this appeal, we determine the
        appeal to be wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27
        (Tex. Crim. App. 2005). Accordingly, we affirm the trial court’s judgment.

                Counsel’s request that he be allowed to withdraw from
        representation of Kirven is granted. Counsel has already notified Kirven
        of his right to file a pro se petition for discretionary review as part of his
        “educational burdens” he satisfied when filing his Anders brief. Further,
        the Court of Criminal Appeals has validated the method of notification
        used by counsel. See In re Schulman, 252 S.W.3d 403, 412 n.34 (Tex. Crim.
        App. 2008); Meza v. State, 206 S.W.3d 684, 689 n.23 (Tex. Crim. App. 2006);
        Ex parte Owens, 206 S.W.3d 670, 674 n.28 (Tex. Crim. App. 2006).
        However, pursuant to the Rules of Appellate Procedure, counsel must,
        nevertheless, send Kirven a copy of our decision and notify Kirven 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.3d 403, 409 n. 22 (Tex. Crim. App. 2008).

                                        CONCLUSION

        I cannot join the majority opinion. I concur in the Court’s judgment only to the

extent it affirms the trial court’s judgment and grants counsel’s motion to withdraw.



                                           TOM GRAY
                                           Chief Justice

Concurring Opinion issued and filed on May 13, 2009
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