The opinion
Opinion issued October 8,
2009
In The
Court of Appeals
For The
First District of Texas
__________
NO. 01-08-00906-CR
__________
ALTON D. BROWN, Appellant
V.
THE STATE OF TEXAS,
Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1172773
MEMORANDUM OPINION
Appellant,
Alton D. Brown, was indicted for the third–degree offense of possession of more
than one but less than four grams of a controlled substance [1]
(cocaine) with a habitual-felony-offender enhancement. [2] Although there was no agreed recommendation
as to punishment, appellant pleaded guilty on October 10, 2008, and the State
abandoned the enhancement allegations. The trial court sentenced appellant to
confinement in prison for three years. Appellant
filed an untimely motion for new trial on November 20, 2008, which the trial
court denied on December 5, 2008. Appellant
filed a timely notice of appeal. We
affirm.
Appellant’s
counsel on appeal has filed a brief stating the record presents no reversible
error, that the appeal is without merit and frivolous, and that the appeal must
be dismissed or affirmed. See Anders v. California,
386 U.S. 738 , 87 S. Ct. 1396 (1967).
The brief meets the requirements of Anders
by presenting a professional evaluation of the record and detailing why there
are no arguable grounds for reversal. Id. at 744 , 87 S. Ct. at 1400 .
Appellant’s counsel has, in accordance with Anders procedures, filed a motion to withdraw. Counsel represents that he has served a copy
of the brief to the appellant. Counsel
also advised appellant of his right to examine the appellate record and file a pro se response. See Stafford v. State , 813 S.W.2d 503, 510 (Tex. Crim.
App. 1991). Appellant filed a pro se response.
When this Court receives an Anders brief, we evaluate the appeal by
conducting an independent review of the entire record. Mitchell
v. State , 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Anders , 386 U.S.
at 744 , 87 S. Ct. at 1400 . Our responsibility is not “to review the
merits of each claim raised” but simply to “determine whether there are any
arguable grounds” upon which counsel could ethically base an appeal. Bledsoe
v. State , 178 S.W.3d 824, 827 (Tex.
Crim. App. 2005). An arguable ground for
appeal is a ground that is not frivolous; it must be an argument that could
“conceivably persuade the court.” In re
Schulman , 252 S.W.3d 403 , 407 n. 12 (Tex. Crim. App 2008) (quoting McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S.
429 , 108 S. Ct. 1895, 1901 (1988)). If after reviewing the entire record, we
conclude that an appeal would be frivolous, we may affirm the trial court by
issuing an opinion in which we explain that we found no arguable grounds upon
which to base an appeal. Bledsoe , 178 S.W.3d at 826, 828 .
In accordance with Anders , 386 U.S.
at 744–45, 87 S. Ct. at 1400 , and Bledsoe , 178 SW.3d at 826–27, we have
reviewed the entire record, counsel’s Anders
brief, and appellant’s pro se response.
We conclude that no arguable ground for reversible error exists. Having reached that conclusion, we affirm the
lower court and grant appellant’s appointed counsel’s motion to withdraw. [3]
Conclusion
We affirm
the judgment of the trial court and grant counsel’s motion to withdraw.
Jim
Sharp
Justice
Panel consists of Justices Jennings, Keyes,
and Sharp.
Do not publish. Tex.
R. App. P. 47.2 (b) .
[1] T ex. Health & Safety Code Ann. §
481.115(a), (c) (Vernon 2003).
[2] Tex. Penal Code Ann. § 12.42(d) (Vernon
Supp. 2008).
[3] We
note that appellant’s appointed counsel still has a duty to inform appellant of
the result of this appeal and that appellant may, on his own, pursue
discretionary appeal in the Texas Court of Criminal Appeals. See Ex
Parte Wilson , 956 S.W.2d 25, 27 (Tex.
Crim. App. 1997).