                                     NO. 07-11-0238-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                            PANEL A

                                        MAY 11, 2012

                           ______________________________


                           MICKEY BURCHFIELD, APPELLANT

                                              V.

                           THE STATE OF TEXAS, APPELLEE


                         _________________________________

               FROM THE 154TH DISTRICT COURT OF LAMB COUNTY;

                     NO. 4635; HONORABLE FELIX KLEIN, JUDGE

                          _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                 MEMORANDUM OPINION


      Following a plea of not guilty, Appellant, Mickey Burchfield, was convicted by a

jury of murder1 with an affirmative finding on use of a deadly weapon. Punishment was

assessed by the trial court at sixty-five years confinement. In presenting this appeal,




1
Tex. Penal Code Ann. § 19.02 (West 2011).
counsel has filed an Anders2 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 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 By letter, this Court granted Appellant an opportunity to

exercise his right to file a response to counsel=s brief, should he be so inclined. Id. at

409 n.23. Appellant did not file a response. Neither did the State favor us with a brief.


        Appellant was indicted for intentionally or knowingly causing the death of Ronald

Bures on or about July 31, 2009. The two men met in Lubbock and had been friends for

a very short time. Just days prior to the commission of the offense, Appellant, the victim

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. In re Schulman, 252 S.W.3d at 408
n.22 & at 411 n.35.


                                                      2
and a third man, a friend of the victim's, moved into a farmhouse owned by Appellant's

family where they could reside rent-free.                 The house was located in the small

community of Spade. The plan was for the victim, who was the only one with a vehicle,

to transport the men where they needed to go. Appellant had engaged in day labor

while in Lubbock; otherwise the men were not employed. They spent their time drinking

and playing cards.


       Not long after moving into the house, on the morning of July 31, 2009, the men

drank heavily and according to the evidence, the victim and his friend began arguing in

the kitchen. The arguing then led to Appellant and the victim engaging in a physical

altercation which resulted in Appellant cutting both sides of the victim's neck with a

knife.4 According to Appellant, he ordered both men out of his house and he went to

the bathroom. The victim then asked his friend to drive him to the hospital to have the

injuries to his neck treated. When Appellant came out of the bathroom he noticed the

door from the house to the garage was open and went outside.


       Appellant's version of the events is that the victim, a much larger man than

himself, came at him and he picked up a grub hoe to defend himself. He testified that

he struck the victim about the face and head with the hoe three or four times. After the

altercation, Appellant drove to a friend's house which was located approximately a mile

and a half away. The friend testified that she had known Appellant all her life and that

he claimed to have killed someone. Appellant left and she called the Lamb County

Sheriff's Department to report the crime.



4
Appellant claimed that the victim initially came at him with a baseball bat.

                                                     3
       Appellant returned to the farmhouse and decided to hide the victim's body. With

assistance from the victim's friend, they attempted to put the body in the car but were

unable to lift him due to his size. Appellant decided to tie the body to the car, and he

and the victim's friend dragged it to a nearby ravine and disposed of it.


       Unbeknownst to Appellant, the Hale County Sheriff's Department had received a

call about a suspicious vehicle dragging something.         Deputies were dispatched to

Appellant's house to investigate.      Appellant and the victim's friend were in the

processing of cleaning up the crime scene. A Texas Ranger was also dispatched to the

farmhouse later that evening for the purpose of interviewing Appellant. After being

properly admonished, Appellant willingly spoke with the Ranger for approximately forty

to fifty minutes. He confessed to killing the victim but continuously claimed that he

acted in self-defense. However, Appellant showed no defensive wounds on his hands

or body.


       Appellant testified at trial and was cross-examined about inconsistent statements

he gave prior to trial. Even though the trial court submitted instructions on the defensive

theory of self-defense, the jury rejected that theory and found him guilty of murder.


       By the Anders brief, counsel raises a plausible ground for appeal regarding error

potentially committed during the State's opening argument.         He asserts the State's

argument exceeded the purpose of article 36.01 of the Texas Code of Criminal

Procedure which provides that the prosecutor "shall state to the jury the nature of the

accusation and the facts which are expected to be proved . . . ." Specifically, the

prosecutor referred to the court's charge and a possible instruction on the juror's roles


                                             4
as sole judges of the credibility of the witnesses. However, he concludes that because

no objection was raised, any potential argument is not preserved for review. See Tex.

R. App. P. 33.1(a).


       We have independently conducted a diligent examination of the entire record to

determine whether there are any non-frivolous issues which might support the appeal

including voir dire, pretrial motions, the trial proceedings, Appellant's statements, closing

arguments, the jury charge and sentencing. See Penson v. Ohio, 488 U.S. 75, 109

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 (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 (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.




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