Opinion

Lobe Mayes v. State

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Jun 7, 2012
Status
Published
Cited by
0 cases
Authority
More cited than 42.2%

The opinion

Opinion issued June 7, 2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00732-CR

———————————

Lobe mayes , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Case No. 1165129

MEMORANDUM OPINION

A jury convicted Lobe Mayesof the felony

offense of indecency with a child and, after finding two enhancement offenses

true, assessed punishment at forty years’ confinement . [1] Mayes timely filed a notice of appeal.

Mayes’s appointed counsel on appeal has filed a motion to

withdraw, along with 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).

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. Counsel’s obligation to

the appellate court is to assure it, through an Anders brief, that the request to withdraw is well-founded based on

a complete review of the record. Id. If

we agree that the appeal is wholly frivolous, we will grant counsel’s motion to

withdraw and affirm the trial court’s judgment. See Garner v. State , 300 S.W.3d 763, 767 (Tex. Crim. App. 2009). If

we conclude that arguable grounds for appeal exist, however, 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

Bledsoev. State , 178 S.W.3d 824 , 826 - 27 (Tex. Crim. App. 2005).

Here, the record reflects that

counsel delivered a copy of the brief to Mayesand informed himof his right to examine

the appellate record andto file a response. See

Schulman , 252 S.W.3d at 408 . More than 30 days have passed, and Mayes has

not filed a pro se 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 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.).

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 thatthe appeal is therefore frivolous. See Anders , 386 U.S. at 744 , 87 S.Ct. at

1400 ; Garner , 300 S.W.3d at 767

(Tex.Crim.App.2009) (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 . 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 . Mayes may challenge our 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 at 827 & n.6.

We

affirm the trial court’s judgment and grant counsel’s motion to withdraw. [2] Attorney,Patti

Sedita, 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).

PER

CURIAM

Panel

consists of Justices Bland, Massengale, and Brown.

Do

not publish. Tex. R. App. P. 47.2( b).

[1] See

Tex. Penal Code Ann. §

21.11(a) (West 2011).

[2] 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 , 178

S.W.3d at 826 − 27.

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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