Deandre Denson v. State

Opinion issued November 17, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NOS. 01-10-00276-CR

01-10-00277-CR

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DEANDRE

DENSON , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Case Nos. 1136402 & 1136515

MEMORANDUM OPINION

These are two appeals from judgments convicting appellant

Deandre Denson of aggravated

robbery [1] and

arson. [2]

Denson plead guilty to both offenses and

waived a jury on punishment. The trial assessed

punishment at life imprisonment for aggravated robbery and 60 years’ imprisonment

for arson. The signed judgments stated that

the sentences were to run concurrently.

The briefs submitted by Denson’s

court‑appointed 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). Counsel’s briefs meet

the minimum requirements by presenting a professional evaluation of the record

and stating why there are no arguable grounds for reversal on appeal. See

Broadnax v. State , 473 S.W.2d 468,

469 (Tex. Crim. App. 1971) (citing Gainous

v. State , 436 S.W.2d 137, 138 (Tex. Crim. App. 1969) (plurality op.)). Denson has not filed pro se responses. The State has waived its opportunity to file

briefs.

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

grounds for appeal, 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 Denson’s appointed

counsel’s Anders briefs, and determine

that the appeals are wholly frivolous and conclude that no reversible error

exists. Because the judgments

incorrectly state “APPEAL WAIVED. NO

PERMISSION TO APPEAL GRANTED.”, we modify the trial court’s judgments to delete

that phrase. [3] As so modified, we affirm the judgments. See

Tex. R. App. P. 43.2(b). We grant appellant’s appointed counsel’s

motions to withdraw.

Appointed counsel still has a duty to (1)

send appellant a copy of the opinion and judgment in these cases, (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.).

PER CURIAM

Panel

consists of Justices Jennings, Sharp, and Brown.

Do

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

[1] See Tex.

Penal Code Ann. § 29.03(a)(3) (West 2011) (trial‑court case number

1136402 and appellate case number 01‑10‑00276‑CR).

[2] See Tex.

Penal Code Ann. 28.02(a)(2)(D), (E) (West 2011) (trial‑court case

number 1136515 and appellate case number 01‑10‑00277‑CR).

[3] We note

that the two certifications of defendant’s right to appeal correctly reflect

that he has the right to appeal. See Tex.

R. App. P. 25.2(d).