Osahon Seramen Omoruyi v. State ( 2011 )

Opinion issued December 29, 2011.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00545-CR

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Osahon Seramen Omoruyi, Appellant

V.

The State of Texas, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Case No. 1220772

MEMORANDUM OPINION

          Appellant, Osahon Seramen Omoruyi, was charged with the felony offense of compelling prostitution. See Tex. Penal Code Ann. § 43.05 (Vernon Supp. 2011).  Appellant pleaded not guilty, and the case was tried to a jury.  The jury found appellant guilty and assessed punishment at 12 years’ confinement and a $10,000 fine.  Appellant timely filed a notice of appeal.

Appellant’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).  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) (citing McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 436, 108 S. Ct. 1895, 1901 (1988)).  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 30 days, and he has ensured that his client has, at some point, been informed of his right to file a pro se petition for discretionary review;

(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

(4)     we have reviewed the record, the Anders brief, and any pro se brief.

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 & n.14 (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 In re Schulman, 252 S.W.3d at 408.  More than thirty days have passed, and appellant has not filed a pro se brief.  See id. at 409 n.23 (adopting 30-day period for 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; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978).  Counsel discusses the evidence adduced at the trial, 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, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 155 (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 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 the 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 affirm the judgment of the trial court and grant counsel’s motion to withdraw.[1]  Attorney Jerome Godinich, 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).

PER CURIAM

Panel consists of Justices Keyes, Higley, and Massengale.

Do not publish.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

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[1]           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 v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).