Opinion

Phillip Alex Reazer v. State

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Dec 31, 2010
Status
Published
Cited by
0 cases
Authority
More cited than 35.3%

The opinion

Opinion issued December

31, 2010

In The

Court of Appeals

For The

First District of

Texas

NO. 01-07-01119-CR

____________

PHILLIP ALEX REAZER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 1108798

MEMORANDUM OPINION

Appellant,

Phillip Alex Reazer, pleaded guilty, without an agreed recommendation, to the

felony offense of aggravated assault of a family member. The trial court assessed punishment at five

years’ deferred adjudication community supervision. Subsequently, the State moved for an adjudication

of appellant’s guilt on the grounds that appellant had violated the conditions

of his community supervision. At a

hearing on the motion, appellant pleaded true to the allegation that he failed

to provide written verification of employment and that he failed to perform

community service as ordered. The trial

court found the allegations true, adjudged appellant guilty of the original

charge, and assessed punishment at confinement for ten years and a $500

fine. The trial court entered an

affirmative finding on the use or exhibition of a deadly weapon, namely, a lug

wrench. The trial court certified that

this is not a plea bargain case and that appellant has the right of

appeal. Appellant timely filed a notice

of appeal.

Appellant’s court-appointed appellate

counsel has filed a motion to withdraw, along with an Anders brief stating that the record presents no reversible error

and that therefore the appeal is frivolous. See

Anders v. California , 386 U.S. 738 , 87 S. Ct. 1396 (1967). We affirm the trial court’s judgment and

grant counsel’s motion to withdraw.

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 .

at 407. 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 her Anders

brief to her client, along with a letter explaining that the defendant has the

right to file a pro se brief within 30 days, and she has ensured that her

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 she 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).

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, 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.).

Appellant

filed a pro se response, arguing that (1) he has been denied access to an

adequate law library, (2) in general, the facts presented during sentencing regarding

his fees and fine were “misrepresented,” (3) he wishes to bring to the court’s

attention “a fact not mentioned in or before [his] sentencing,” and (4) a

“proper investigation” into the “mental state of the alleged victim” would have

revealed that the complainant has a history of “jealousy and mental

instability” that motivated the charge being made against appellant.

We have independently reviewed the

entire record, and we conclude that no reversible error exists, that there are

no arguable grounds for review, and that therefore the appeal is frivolous. See Schulman ,

252 S.W.3d at 407 n.12 (explaining that appeal is frivolous when it does not

present any argument that could “conceivably persuade the court”); 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). 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 827 & n.6 .

We grant counsel’s motion to withdraw [1]

and affirm the trial court’s judgment. Attorney Frances M. Northcutt 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). All other pending motions are denied.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Massengale

and Brown.

Do not publish.

Tex. R. App. P. 47.2( b).

[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).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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