Opinion issued June 28, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00473-CR

CLIFFORD WINFREY JR. Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 1028859

Appellant, Clifford Winfrey Jr., pleaded guilty, without an agreed punishment recommendation from the State, to the offense of aggravated robbery, enhanced by prior convictions for burglary of a habitation and possession of a controlled substance. See Tex. Pen. Code Ann. § 29.03(a)(2)-(3) (Vernon 2003). Having found appellant guilty and the enhancement paragraphs true, the trial court assessed punishment at 40 years in prison. Appellant's appellate counsel has submitted a brief stating that, in his professional opinion, the appeal is without merit and there are no arguable grounds for reversal on appeal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant has filed a pro se response, contending that there is an arguable basis for reversal on appeal, specifically, his trial counsel's ineffective assistance. We affirm.

On January 30, 2006, appellant pleaded guilty to the offense of aggravated robbery and pleaded true to two enhancement allegations of the prior felonies of burglary of a habitation and possession of a controlled substance. The trial court deferred finding appellant guilty until a pre-sentence investigation ("PSI") report could be made. On April 12, 2006, the punishment hearing occurred, during which the complainant, appellant's mother, and appellant testified. The trial court then found appellant guilty, found the enhancements true, and assessed appellant's punishment.

The brief submitted by appellant's court-appointed counsel states his professional opinion that there are no arguable grounds for reversal on appeal and that any appeal would, therefore, lack merit. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Counsel's brief meets the minimum Anders requirements by presenting a professional evaluation of the record and stating why there are no arguable grounds for reversal on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Appellant's counsel has advised the Court that he sent a copy of the Anders brief to appellant and notified appellant of his right to review the record and to file a pro se response. Counsel had also requested permission to withdraw from representing appellant on appeal. Appellant has filed a pro se response to his counsel's Anders brief.
Upon receipt of an Anders brief from an appellant's court-appointed attorney who asserts that no arguable grounds for reversal on appeal exist, we must determine that issue independently by conducting our own review of the entire record. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court--and not appointed counsel--determines, after full examination of proceedings, whether case is "wholly frivolous"); Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991) (quoting Anders for this rule). In conducting our review, we consider any pro se response that the appellant files to his appointed counsel's Anders brief. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005).
Our role in this Anders appeal, which includes a pro se response by appellant, is limited to determining whether arguable grounds for appeal exist. See Bledsoe, 178 S.W.3d at 826-27. 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. See id. at 827. 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 in the appellate court. See id. We do not rule on the ultimate merits of the issues raised by the appellant in his pro se response. Id. Rather, if we determine that there are arguable grounds for appeal, the appellant 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 and have found no reversible error. See id. at 826, 828. The holding that there are no arguable grounds for appeal is subject to challenge through 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 826-28, we have reviewed the record, appellant's appointed counsel's Anders brief, and appellant's pro se response to that brief, and we conclude that no arguable grounds for reversal exist.

We affirm the judgment of the trial court and grant appointed counsel's motion to withdraw.

Tim Taft

Justice

Panel consists of Justices Taft, Jennings, and Alcala.

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