emphasizing that reviewing court—and not counsel—determines, after full examination of proceedings, whether appeal is wholly frivolous
How later courts described this case
- emphasizing that reviewing court—and not counsel—determines, after full examination of proceedings, whether appeal is wholly frivolous
- reviewing court must determine whether arguable grounds for review exist
Written by the judges who cited it.
The opinion
Opinion issued April 17, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00086-CR
———————————
ERNEST PETER THOMAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Court Cause No. 10-09929
MEMORANDUM OPINION
Appellant, Ernest Peter Thomas, was convicted of the offense of sexual
assault and sentenced to two years’ confinement. See TEX. PENAL CODE ANN.
§§ 12.33, 22.011(a)(1)(A) (West 2011). Appellant timely filed a notice of appeal.
Appellant’s appointed counsel on appeal has filed a motion to withdraw,
along with a brief stating that the record presents no reversible error and the appeal
is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct.
1396 (1967).
Counsel’s brief meets the Anders requirements by presenting a professional
evaluation of the record and supplying us with references to the record and legal
authority. 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 indicates that he has
thoroughly reviewed the record and 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.).
Counsel has also informed us 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 403, 408 (Tex. Crim. App. 2008).
Appellant has not filed a pro se response.
We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, there are no arguable grounds
for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at
1400 (emphasizing that reviewing court—and not counsel—determines, after full
examination of proceedings, whether appeal is wholly frivolous); Garner v. State,
2
300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine
whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824,
826–27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (same).
Appellant may challenge a holding that there are no arguable grounds for appeal by
filing a petition for discretionary review in the Texas Court of Criminal Appeals.
See Bledsoe, 178 S.W.3d at 827 & n.6.
Accordingly, we affirm the judgment of the trial court and grant counsel’s
motion to withdraw.1 Attorney Thomas J. Burbank must immediately send
appellant the required notice and file a copy of the notice with the Clerk of this
Court. See TEX. R. APP. P. 6.5(c).
PER CURIAM
Panel consists of Justices Keyes, Bland, 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 Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App.
1997).
3