Jamall Jerome McMurrin v. State

Opinion issued August 30, 2012

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00048-CR

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JAMALL JEROME MCMURRIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Case No. 09CR1888

MEMORANDUM OPINION

After the district court’s pretrial order overruled his written motion to

suppress, appellant Jamall Jerome McMurrin pleaded guilty to possession of less

than one gram of methylenedioxy methamphetamine. See TEX. HEALTH & SAFETY

CODE ANN. §§ 481.103(a)(1), .116 (West 2010); TEX. R. APP. P. 25.2(a)(2). The

brief submitted by appellant’s court-appointed appellate counsel states his

professional opinion that there are no arguable grounds for reversal on appeal and

that any appeal would, therefore, be wholly frivolous. See Anders v. California,

386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant did not file a pro se

response, and the State did not file a brief.

When this Court receives an Anders brief from a defendant’s

court-appointed attorney who asserts that an appeal would be wholly frivolous, we

must determine that issue independently by conducting our own review of the

entire record. 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 case is “wholly frivolous”); Stafford v. State, 813 S.W.2d

503, 511 (Tex. Crim. App. 1991). In conducting our review, we consider any pro

se response that the defendant files to his appointed counsel’s Anders brief. See

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

Our role is limited to determining whether arguable grounds for appeal exist.

Id. at 827. If we determine that arguable grounds for appeal exist, we must abate

the appeal and remand the case to the trial court to allow the court-appointed

attorney to withdraw. Id. The trial court must then either appoint another attorney

to present all arguable grounds for appeal or, if the defendant wishes, allow the

defendant to proceed pro se. Id. We do not rule on the ultimate merits of issues

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raised by a defendant in his pro se response. Id. If we determine that there are

arguable grounds for appeal, the defendant is entitled to have new counsel address

the merits of the issues raised. Id. “Only after the issues have been briefed by new

counsel may [we] address the merits of the issues raised.” Id.

If, on the other hand, we determine, from our independent review of the

entire record, that the appeal is wholly frivolous, we may affirm the trial court’s

judgment by issuing an opinion in which we explain that we have reviewed the

record, determined that the appeal is wholly frivolous, and concluded there is no

reversible error. See id. at 826. The holding that there are no arguable grounds for

appeal is subject to challenge by a defendant by a petition for discretionary review

filed in the Court of Criminal Appeals. Id. at 827 & n.6.

In accordance with Anders, 386 U.S. at 744–45, 87 S. Ct. at 1400, and

Bledsoe, 178 S.W.3d at 826–27, we have reviewed the record and appellant’s

appointed counsel’s Anders brief. Appellate counsel did not discuss in any way

that the district clerk had informed this Court that the videotape admitted during

the motion-to-suppress hearing was not on file. We subsequently ordered the trial

court to make findings on whether the videotape had been lost or destroyed. The

trial court found the videotape, which has now been filed in this Court as a part of

the appellate record, and the trial court found that appellant’s attorney had viewed

the videotape before filing his appellate brief.

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Based on the supplemented appellate record, we determine that the appeal is

wholly frivolous and conclude that no reversible error exists. We grant appellant’s

appointed counsel’s motion to withdraw. Appointed counsel still has a duty to (1)

send appellant a copy of the opinion and judgment, (2) notify appellant of any

upcoming appellate deadlines not previously disclosed (e.g., to file a pro se motion

for rehearing or petition for discretionary review), (3) inform appellant that he

may, on his own, file a pro se petition for discretionary review in the Court of

Criminal Appeals under Texas Rule of Appellate Procedure 68, and (4) file with

the Clerk of this Court within five days from the date of this opinion the documents

required by Texas Rules of Appellate Procedure 6.5(c) and 48.4. See Bledsoe, 178

S.W.3d at 827 & n.6; Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997);

Stephens v. State, 35 S.W.3d 770, 771–72 (Tex. App.—Houston [1st Dist.] 2000,

no pet.).

Jim Sharp

Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).

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