Lobe Mayes v. State ( 2012 )

Opinion issued June 7, 2012.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00732-CR

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Lobe mayes, Appellant

V.

The State of Texas, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Case No. 1165129

MEMORANDUM OPINION

A jury convicted Lobe Mayesof the felony offense of indecency with a child and, after finding two enhancement offenses true, assessed punishment at forty years’ confinement.[1]Mayes timely filed a notice of appeal.

Mayes’s appointed 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).

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, her obligation to her client is to seek leave to withdraw. Id. Counsel’s obligation to the appellate court is to assure it, through an Anders brief, that the request to withdraw is well-founded based on a complete review of the record. Id. If we agree that the appeal is wholly frivolous, we will grant counsel’s motion to withdraw and affirm the trial court’s judgment. See Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009). If we conclude that arguable grounds for appeal exist, however, 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 Bledsoev. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).

Here, the record reflects that counsel delivered a copy of the brief to Mayesand informed himof his right to examine the appellate record andto file a response. See Schulman, 252 S.W.3d at 408. More than 30 days have passed, and Mayes has not filed a pro se response.

Counsel’s brief meets the Anders requirements by presenting 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 she has thoroughly reviewed the record and that she is unable to advance any grounds of error that warrant reversal.See Anders, 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 we conclude that no reversible error exists in the record, that there are no arguable grounds for review, and thatthe appeal is therefore frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Garner, 300 S.W.3d at 767 (Tex.Crim.App.2009) (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 the appeal lacks arguable merit, we are not required to do so. See Garner, 300 S.W.3d at 767. Mayes may challenge our 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 affirm the trial court’s judgment and grant counsel’s motion to withdraw.[2]Attorney,Patti Sedita, 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.SeeTex. R. App. P. 6.5(c).

PER CURIAM

Panel consists of Justices Bland, Massengale, and Brown.

Do not publish. Tex. R. App. P. 47.2(b).

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[1]           See Tex. Penal Code Ann. § 21.11(a) (West 2011).

[2]           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 Texas Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 826−27.