Dave Lamon Adams v. State ( 2006 )

Opinion issued November 30, 2006

In The

Court of Appeals

For The

First District of Texas

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NO. 01-05-01017-CR

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DAVE LAMON ADAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1039218

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MEMORANDUM OPINION

          A jury found appellant, Dave Lamon Adams, guilty of aggravated robbery, and the trial court, having found true the enhancement paragraph alleging a prior felony conviction, sentenced him to 30 years’ confinement. Appellant’s court-appointed counsel has filed an Anders brief, stating that he found no arguable points of error to raise on appeal and moving to withdraw as counsel. Appellant’s pro se response challenges counsel’s recommendation. We hold that the appeal is wholly frivolous and that no reversible error exists.

Background

          In the early morning hours of December 23, 2004, James Martindale, the complaint in this case, was working as a “bouncer” at the West Wind Club when he was informed by a customer that a man in the club’s parking lot was looking into car windows. Martindale confronted the man and inquired as to his business in the parking lot. After a brief exchange of words, the confrontation became hostile, and the man pulled a knife out of his jacket and began stabbing at Martindale. Martindale backed away and called 911 from the cell phone that he was carrying at the time, but the man instructed him to empty his pockets. When Martindale refused, the two men “stared at one another for a minute,” and then the man fled on foot. A club patron followed the man and watched him run into an apartment in a nearby complex.

          A police investigation revealed that the apartment the man fled to was leased to appellant’s girlfriend. In a photo array prepared by the investigating officer, Martindale tentatively identified appellant as the man whom he had confronted in the club parking lot. He could not, however, make a positive identification. A live lineup was later conducted, during which time Martindale positively identified appellant. Appellant was arrested and charged by indictment with the offense of aggravated robbery.   

Discussion

          The appellate brief submitted by appellant’s court-appointed counsel states that, in his professional opinion, there are no arguable grounds for reversal on appeal and, as a result, any appeal would lack merit. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Counsel’s brief meets the minimum Anders requirements by presenting a professional evaluation of the record and stating why there are no arguable grounds for reversal on appeal. Id.

          When an Anders brief and a pro se response are filed in this Court, we are presented with two options. Onofre v. State, 193 S.W.3d 148, 149 (Tex. App.—Houston [1st Dist.] 2006, no pet.). After reviewing the entire record, we may determine (1) that the appeal is wholly frivolous and issue an opinion affirming the trial court’s judgment and explaining that we have found no reversible error or (2) that there are arguable grounds for appeal and remand the cause to the trial court for appointment of new appellate counsel. Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005); Mitchell v. State, 193 S.W.3d 153, 156 (Tex. App.—Houston [1st Dist.] 2006, no pet.). If we determine that there are arguable grounds for appeal, we do not rule on the ultimate merits of those issues. Mitchell, 193 S.W.3d at 156. Rather, appellant is entitled to have new counsel appointed to address the merits of the issues raised. Id.

          In accordance with Anders, 386 U.S. at 744–45, 87 S. Ct. at 1400 and Bledsoe, 178 S.W.3d at 826–27, we have reviewed the record, counsel’s Anders brief, and appellant’s pro se response. We conclude that the appeal is wholly frivolous and that no reversible error exists.

Conclusion

          We affirm the judgment of the trial court and grant counsel’s motion to withdraw.

                                                             George C. Hanks, Jr.

                                                             Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Do not publish. Tex. R. App. P. 47.4.