John W. Paul v. State ( 2006 )

                             NUMBER 13-04-559-CR

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

______________________________________________________________

JOHN W. PAUL,                                                      Appellant,

                                           v.

THE STATE OF TEXAS,                                              Appellee.

______________________________________________________________

                   On appeal from the 36th District Court

                        of San Patricio County, Texas.

______________________________________________  _______________

                     MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Garza

                Memorandum Opinion by Justice Rodriguez

Appellant, John W. Paul, appeals from his conviction of burglary.  See Tex. Pen. Code Ann. ' 30.02 (Vernon 2003).  Tried by a jury, appellant was acquitted of arson, but found guilty of burglary and sentenced to nine years in the Texas Department of Criminal Justice, Institutional Division.  Concluding that "there is no set of circumstances supported by the case law that would support presenting any legally non-frivolous issue," appellant's counsel filed a brief in which he presented one arguable ground of error. The trial court has certified that this case "is not a plea-bargain case, and the defendant has the right of appeal."  See Tex. R. App. P. 25.2(a)(2).  We affirm.

Because all issues of law are settled, our memorandum opinion only advises the parties of the Court's decision and the basic reasons for it.  See id. at 47.4.

I.  Compliance with Anders v. California

Appellant's court-appointed counsel filed an Anders brief in which he has concluded that there are no legally non-frivolous issues and has moved to withdraw from the case.  Anders v. California, 386 U.S. 738, 744 (1967).  Appellant's brief meets the requirements of Anders. Id. at 744-45; see High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978).  In compliance with Anders, counsel presented a professional evaluation of the record and referred this Court to what, in his opinion, are all points which might arguably support an appeal.  See Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see also High, 573 S.W.2d at 812.  Counsel has informed this Court that:  (1) he has examined the record and finds no reversible error is reflected therein; (3) he set forth points which might arguably support an appeal; (4) he forwarded a copy of the brief to appellant with a letter informing him of the filing of the brief and his request to withdraw as counsel; and (5) he informed appellant of his right to file a pro se brief.  See Anders, 386 U.S. at 744-45; see also Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991) (en banc); High, 573 S.W.2d at 813.  Counsel has also informed this Court that he forwarded the record to appellant.  More than thirty days have passed, and appellant has not filed any pro se brief.  See Anders, 386 U.S. at 744‑45; see also High, 573 S.W.2d at 813.

In compliance with Anders, counsel raises and reviews the following issue as a possible ground for our review:  whether the evidence is sufficient to prove intent to commit theft, an essential element of the crime of burglary.

II.  Independent Review

The Texas Supreme Court advised appellate courts that upon receiving a "frivolous appeal" brief, they must conduct "a full examination of all the proceedings to decide whether the case is wholly frivolous."  Penson v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.BCorpus Christi 2003, no pet.).  Accordingly, we have carefully reviewed the record and have considered the issue raised in appellant=s Anders brief, and we have found nothing that would arguably support an appeal.  See Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005); Stafford, 813 S.W.2d at 509.  We agree with counsel that the appeal is wholly frivolous and without merit.  See Bledsoe, 178 S.W.3d at 827‑28 ("Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1.").

III.  Conclusion

The judgment of the trial court is affirmed. Additionally, in accordance with Anders, appellant's counsel filed a motion to withdraw as counsel for appellant which we carried with the case on February 3, 2005.  See Anders, 386 U.S. at 744.  Having affirmed the judgment, we now grant counsel's motion to withdraw.  We order counsel to notify appellant of the disposition of this appeal and of the availability of discretionary review.  See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (en banc) (per curiam).                                                            

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 8th day of June, 2006.