Jamall Jerome McMurrin v. State ( 2012 )

Opinion issued August 30, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-10-00048-CR
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JAMALL JEROME MCMURRIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Case No. 09CR1888
MEMORANDUM OPINION
After the district court’s pretrial order overruled his written motion to
suppress, appellant Jamall Jerome McMurrin pleaded guilty to possession of less
than one gram of methylenedioxy methamphetamine. See TEX. HEALTH & SAFETY
CODE ANN. §§ 481.103(a)(1), .116 (West 2010); TEX. R. APP. P. 25.2(a)(2). The
brief submitted by appellant’s court-appointed appellate counsel states his
professional opinion that there are no arguable grounds for reversal on appeal and
that any appeal would, therefore, be wholly frivolous. See Anders v. California,
386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant did not file a pro se
response, and the State did not file a brief.
When this Court receives an Anders brief from a defendant’s
court-appointed attorney who asserts that an appeal would be wholly frivolous, we
must determine that issue independently by conducting our own review of the
entire record. Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that
reviewing court—and not counsel—determines, after full examination of
proceedings, whether case is “wholly frivolous”); Stafford v. State, 813 S.W.2d
503, 511 (Tex. Crim. App. 1991). In conducting our review, we consider any pro
se response that the defendant files to his appointed counsel’s Anders brief. See
Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
Our role is limited to determining whether arguable grounds for appeal exist.
Id. at 827. If we determine that arguable grounds for appeal exist, we must abate
the appeal and remand the case to the trial court to allow the court-appointed
attorney to withdraw. Id. The trial court must then either appoint another attorney
to present all arguable grounds for appeal or, if the defendant wishes, allow the
defendant to proceed pro se. Id. We do not rule on the ultimate merits of issues
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raised by a defendant in his pro se response. Id. If we determine that there are
arguable grounds for appeal, the defendant is entitled to have new counsel address
the merits of the issues raised. Id. “Only after the issues have been briefed by new
counsel may [we] address the merits of the issues raised.” Id.
If, on the other hand, we determine, from our independent review of the
entire record, that the appeal is wholly frivolous, we may affirm the trial court’s
judgment by issuing an opinion in which we explain that we have reviewed the
record, determined that the appeal is wholly frivolous, and concluded there is no
reversible error. See id. at 826. The holding that there are no arguable grounds for
appeal is subject to challenge by a defendant by a petition for discretionary review
filed in the Court of Criminal Appeals. Id. at 827 & n.6.
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 and appellant’s
appointed counsel’s Anders brief. Appellate counsel did not discuss in any way
that the district clerk had informed this Court that the videotape admitted during
the motion-to-suppress hearing was not on file. We subsequently ordered the trial
court to make findings on whether the videotape had been lost or destroyed. The
trial court found the videotape, which has now been filed in this Court as a part of
the appellate record, and the trial court found that appellant’s attorney had viewed
the videotape before filing his appellate brief.
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Based on the supplemented appellate record, we determine that the appeal is
wholly frivolous and conclude that no reversible error exists. We grant appellant’s
appointed counsel’s motion to withdraw. Appointed counsel still has a duty to (1)
send appellant a copy of the opinion and judgment, (2) notify appellant of any
upcoming appellate deadlines not previously disclosed (e.g., to file a pro se motion
for rehearing or petition for discretionary review), (3) inform appellant that he
may, on his own, file a pro se petition for discretionary review in the Court of
Criminal Appeals under Texas Rule of Appellate Procedure 68, and (4) file with
the Clerk of this Court within five days from the date of this opinion the documents
required by Texas Rules of Appellate Procedure 6.5(c) and 48.4. See Bledsoe, 178
S.W.3d at 827 & n.6; Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997);
Stephens v. State, 35 S.W.3d 770, 771–72 (Tex. App.—Houston [1st Dist.] 2000,
no pet.).
Jim Sharp
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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