Opinion issued June 21, 2007

In The

Court of Appeals

For The

First District of Texas

NOS. 01-06-00339-CR

01-06-00340-CR

RANDALL CURTIS SIMPSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause Nos. 1023581 & 1023582

MEMORANDUM OPINION

Appellant, Randall Curtis Simpson, pleaded guilty to two charges of aggravated sexual assault of a child. Tex. Pen. Code Ann. § 22.021(a)(1)(B) (Vernon Supp. 2006). The trial court assessed punishment at confinement for life on each charge. Simpson's counsel on appeal has submitted a brief stating her professional opinion that the appeal is without merit and that there are no arguable grounds for reversal on appeal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Simpson filed a pro se response contending that his punishment was unduly harsh and that he was not represented by counsel when he gave a statement to employees of the Children's Assessment Center.

We have reviewed the record and, having found no reversible error, we affirm Simpson's convictions.

Anders Procedure

The brief submitted by Simpson's court-appointed counsel states her 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). Counsel sent a copy of the brief to Simpson, requested permission to withdraw from the case, and notified Simpson of his right to review the record and to file a pro se response. The State waived its opportunity to file a reply to the arguments presented in Simpson's pro se response.

When we receive an Anders brief from a defendant's court-appointed attorney who asserts that no arguable grounds for 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 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, 826-28 (Tex. Crim. App. 2005).

Our role in this Anders appeal, which includes reviewing the pro se response by Simpson, 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 the issues raised by Simpson in his pro se response. Id. If we determine that there are arguable grounds for appeal, Simpson 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 826-28. The holding that there are no arguable grounds for appeal is subject to challenge by Simpson by a petition for discretionary review filed in the Court of Criminal Appeals. Id. at 827 & n.6.

In accordance with Anders and Bledsoe, we have reviewed the record, Simpson's appointed counsel's Anders brief, and Simpson's pro se response to that brief and conclude that no reversible error exists. Having reached that conclusion, we affirm the judgment of the trial court and grant Simpson's appointed counsel's motion to withdraw. ⁽¹⁾

Conclusion

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

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

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

1.

¹ Appointed appellate counsel still has a duty to inform Simpson of the result of this appeal and that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 827 & n.6 (Tex. Crim. App. 2005); 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.).