Lemarcus Eugene Sutton v. State ( 2011 )

Opinion issued December 1, 2011.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00980-CR

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Lemarcus Eugene Sutton, Appellant

V.

State of Texas, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Case No. 09DCR052766A

MEMORANDUM OPINION

          Appellant, Lemarcus Eugene Sutton, pleaded not guilty to the offense of unlawful possession of a firearm by a previously convicted felon.  A jury found appellant guilty of the charge, and assessed punishment at four years and six months’ confinement.  The trial court certified appellant’s right to appeal, and appellant timely filed a notice of appeal.

          Appellant’s appointed counsel on appeal has filed a motion to withdraw and 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 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 with the Texas Court of Criminal Appeals;

(2)     the attorney has informed this Court 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.

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 has not filed a 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 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 ground of error that warrants 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 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.  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 827 & n.6.

          We affirm the judgment of the trial court and grant counsel’s motion to withdraw.[1]  Attorney J. Sidney Crowley 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).  We dismiss all pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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).