Wilbert Lee Ferguson v. State ( 2012 )

Opinion issued June 21, 2012
In The
Court of Appeals
For The
First District of Texas
NO. 01-10-00898-CR
____________
WILBERT LEE FERGUSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 1262454
MEMORANDUM OPINION
Appellant, Wilbert Lee Ferguson, was indicted for theft of tubing consisting
of at least fifty percent copper with a value of less than twenty thousand dollars.
See TEX. PENAL CODE ANN. § 31.03 (Vernon Supp. 2011). A jury found appellant
guilty and assessed punishment at ten years’ confinement. The trial court certified
that this was not a plea bargain case and that appellant had the right to appeal.
Appellant timely filed a notice of appeal.
Appellant’s counsel on appeal has filed a motion to withdraw, along with an
Anders brief stating that the record presents no reversible error and therefore the
appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87
S. Ct. 1396 (1967). We grant counsel’s motion to withdraw and affirm the trial
court’s judgment.
An attorney has an ethical obligation to refuse to prosecute a frivolous
appeal. In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). If an
appointed attorney finds a case to be wholly frivolous, his obligation to his client is
to seek leave to withdraw. Id. Counsel’s obligation to the appellate court is to
assure it, through an Anders brief, that, after a complete review of the record, the
request to withdraw is well-founded. Id.
We may not grant the motion to withdraw until:
(1) the attorney has sent a copy of his Anders brief to his client
along with a letter explaining that the defendant has the right to
file a pro se brief within thirty days, and he has ensured that his
client has, at some point, been informed of his right to file a pro
se PDR;
(2) the attorney has informed us that he has performed the above
duties;
(3) the defendant has had time in which to file a pro se response;
and
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(4) we have reviewed the record, the Anders brief, and any pro se
brief.
See id. at 408–09. If we agree that the appeal is wholly frivolous, we will grant the
attorney’s motion to withdraw and affirm the trial court’s judgment. See Garner v.
State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009). If we conclude that arguable
grounds for appeal exist, we will grant the motion to withdraw, abate the case, and
remand it to the trial court to appoint new counsel to file a brief on the merits. See
Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
Here, counsel’s brief reflects that he delivered a copy of the brief to appellant
and informed him of his right to examine the appellate record and to file a response.
See Schulman, 252 S.W.3d at 408. Appellant filed a pro se response arguing that he
was not adequately represented by his court-appointed counsel and that the
evidence was insufficient to support his conviction.
Counsel’s brief meets the Anders requirements in that it presents a
professional evaluation of the record. See Anders, 386 U.S. at 744, 87 S. Ct. at
1400; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978).
Counsel supplies us with references to the record and provides us with citation to
legal authorities. Counsel indicates that he has thoroughly reviewed the record and
that he is unable to advance any grounds of error that warrant reversal. See Anders,
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386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 154 (Tex.
App.—Houston [1st Dist.] 2006, no pet.).
We have independently reviewed the entire record and appellant’s pro se
response, and we conclude that no reversible error exists in the record, that there are
no arguable grounds for review, and that, therefore, the appeal is frivolous. See
Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Garner, 300 S.W.3d at 767 (explaining
that frivolity is determined by considering whether there are “arguable grounds” for
review); Bledsoe, 178 S.W.3d at 826–27 (emphasizing that reviewing court—and
not counsel—determines, after full examination of proceedings, whether appeal is
wholly frivolous); Mitchell, 193 S.W.3d at 155. Although we may issue an opinion
explaining why an appeal lacks arguable merit, we are not required to do so. See
Garner, 300 S.W.3d at 767. An appellant may challenge a holding that there are no
arguable grounds for appeal by filing a petition for discretionary review in the Court
of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.
We grant counsel’s motion to withdraw1 and affirm the judgment of the trial
court. Attorney Juan M. Contreras, Jr., must immediately send the notice required
by Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice with the
Clerk of this Court. See TEX. R. APP. P. 6.5(c).
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Appointed counsel still has a duty to inform appellant of the result of this appeal
and that he may, on his own, pursue discretionary review in the Court of Criminal
Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
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PER CURIAM
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Do not publish. TEX. R. APP. P. 47.2(b).
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