


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-09-00209-CR
 
Domensis Deshawn Nutall,
                                                                                    Appellant
 v.
 
The State of Texas,
                                                                                    Appellee
 
 

From the 272nd District Court
Brazos County, Texas
Trial Court No. 08-02291-CRF-272
 

MEMORANDUM  Opinion





 
            Domensis Deshawn Nutall pled guilty
without the benefit of a plea bargain to the offense of sexual assault.  Tex. Penal Code Ann. § 22.011 (Vernon Supp. 2009).  The trial court sentenced Nutall to 18 years in prison.  We affirm.
            Nutall’s appellate counsel filed an Anders
brief and a motion to withdraw as counsel.  See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).  Counsel concludes
that the appeal is frivolous.  Nutall was informed of the right to file a pro
se response to his counsel’s Anders brief but has not done so. 
            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,
386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (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, 108 S. Ct. 1895, 100
L. Ed. 2d 440 (1988).  Arguments are frivolous when they “cannot conceivably
persuade the court.”  McCoy, 486 U.S. at 436.  An appeal is not wholly
frivolous when it is based on “arguable grounds.”  Stafford, 813 S.W.2d
at 511.
            After a review of the briefs and 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.
            Should Nutall wish to seek further
review of this case by the Texas Court of Criminal Appeals, Nutall must either
retain an attorney to file a petition for discretionary review or Nutall must
file a pro se petition for discretionary review.  Any petition for
discretionary review must be filed within thirty days from the date of either
this opinion or the last timely motion for rehearing that was overruled by this
Court.  See Tex. R. App. P.
68.2.  Any petition for discretionary review must be filed with this Court,
after which it will be forwarded to the Texas Court of Criminal Appeals along
with the rest of the filings in this case.  See Tex. R. App. P. 68.3.  Any petition for discretionary review
should comply with the requirements of Rule 68.4 of the Texas Rules of
Appellate Procedure.  See Tex. R.
App. P. 68.4.  See also In re Schulman, 252 S.W.3d
403, 409 n.22 (Tex. Crim. App. 2008) (citing Glover v. State, No. 06-07-00060-CR, 2007 Tex. App. LEXIS 9162 (Tex. App.—Texarkana, Nov. 20, 2007, pet. ref'd) (not designated for publication).
            Counsel's request that he be allowed
to withdraw from representation of Nutall is granted.  Additionally, counsel
must send Nutall a copy of our decision, notify Nutall of his right to file a
pro se petition for discretionary review, and send this Court a letter
certifying counsel's compliance with Texas Rule of Appellate Procedure 48.4.  Tex. R. App. P. 48.4; see also In
re Schulman, 252 S.W.3d at 409 n. 22.
 
                                                                        TOM
GRAY
                                                                        Chief
Justice
 
Before
Chief Justice Gray,
            Justice
Reyna, and
            Justice
Davis
Affirmed
Opinion
delivered and filed April 21, 2010
Do
not publish 
[CR25]


tance of counsel have not been preserved for our review.  See Gonzalez, slip op. at 6.
      Because these complaints were not presented to the trial court, we overrule Rodriguez’ four
issues.  We, therefore, affirm the judgment.


                                                                         TOM GRAY
                                                                         Justice

Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
Affirmed
Opinion delivered and filed July 21, 1999
Publish
