Issued June 7, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00712-CR

ANDREW L. LEBLANC, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 1076529

MEMORANDUM OPINION

A jury found appellant, Andrew Luther LeBlanc, guilty of the offense of driving while intoxicated (DWI).  LeBlanc had two prior DWI convictions, which make this conviction a third-degree felony.  See Tex. Pen. Code Ann. § 49.09(b)(2) (Vernon Supp. 2006).  At LeBlanc’s election, the jury also decided his punishment, which it assessed at ten years’ confinement, the maximum prison sentence available under the statute.  See Tex. Pen. Code Ann. § 12.34 (Vernon 2003).  LeBlanc’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).  LeBlanc responded pro se.[1]  In two issues, LeBlanc contends (1) his trial and appellate counsel were both ineffective, and (2) the sentence imposed is illegal.  We have reviewed the record and, having found no reversible error, we affirm LeBlanc’s conviction. 

Background

In October 2005, an auto accident involving LeBlanc and two other motorists occurred at the intersection of Highway 3 and Bay Area Boulevard in Harris County.  LeBlanc’s car had been traveling westbound on Bay Area Boulevar d and ran through the red light.  The two other vehicles were proceeding through the green light traveling southbound on Highway 3.  LeBlanc’s car struck both vehicles.  Everyone managed to escape injury.    

A motorist who had just passed by the accident scene waved down Harris County Deputy Constable C. Mezzino and informed him of the accident.  Officer Mezzino, who was only a short distance away, arrived quickly at the scene.  By that time, one of the drivers had moved his vehicle to a nearby parking lot, but the other two vehicles were still in the intersection. 

Officer Mezzino first cleared the intersection by directing the drivers of those vehicles to pull into the parking lot.  Then he began interviewing the drivers.   He gathered most of the information he needed from the southbound drivers, Leila Sim and Stephen Sivley.  One identified LeBlanc as the driver headed westbound who ran the red light.  Officer Mezzino also determined that a teenage boy named Kevin, whom he later learned was LeBlanc’s grandson, had been in the car with LeBlanc at the time of the accident. 

After gathering the information he needed from Sim and Sivley, he walked over to question LeBlanc.  Officer Mezzino smelled alcohol as he approached LeBlanc.  In addition, Officer Mezzino noticed that LeBlanc’s eyes were bloodshot and glassy, his speech was a bit slurred, and he had trouble balancing himself when Officer Mezzino asked him to step away from the vehicle.  

Based on these observations, Officer Mezzino suspected that LeBlanc’s condition warranted further evaluation.  Consequently, Officer Mezzino contacted Officer J. Cooper at the Webster Police Department and asked him to evaluate LeBlanc’s condition in the Department’s DWI video room.  Then, Officer Mezzino took LeBlanc into custody for suspicion of DWI.   Before taking LeBlanc to the Webster police station, Officer Mezzino allowed him to speak with Kevin.  Officer Mezzino overheard LeBlanc ask Kevin to say that he, not LeBlanc, had been driving when the accident occurred so that LeBlanc would not have to go back to jail for a long time.  

At the Webster Police Department’s DWI video room, Officer Cooper performed the Horizontal Gaze Nystagmus (HGN) test and three other field sobriety tests on LeBlanc.  LeBlanc’s results on the HGN test were inconsistent with LeBlanc’s denial of drinking alcohol.  LeBlanc also performed poorly on two out of the three field sobriety tests administered by Officer Cooper.

Officers Mezzino and Cooper testified to these facts at trial.  The State also introduced evidence that LeBlanc had a court-ordered ignition interlock device installed on his car.   This device required him to pass a breath test before he could start the car and to continue to provide breath samples intermittently while the car was in operation. 

At trial, LeBlanc presented two main defensive theories.  First, he denied having been intoxicated and attacked the accuracy of the State’s evidence that he had been drinking.  Second, he claimed that his grandson Kevin, who did not have even a learner’s permit, had been driving when the accident occurred.  LeBlanc explained that he let his grandson drive because he had taken medication during the night and was concerned that he could not pass the breath test required to start the car.  LeBlanc stated that he switched places with Kevin immediately after the accident, explaining that he initially took responsibility as the driver so that Kevin would not have the accident on his driving record.  According to LeBlanc, he later asked Kevin to take responsibility as the driver because he realized that he could be charged with DWI and thus could be subject to a more serious penalty than Kevin.  Kevin testified consistently with his grandfather’s version of these events. 

Both of the other drivers involved in the accident also testified.  Sivley stated that both LeBlanc, whom he saw in the driver’s seat, and Kevin remained in his sight until Officer Mezzino appeared and that he did not see them switch places in the car.  He recounted that when he approached LeBlanc’s car, he could smell alcohol on LeBlanc’s breath from approximately three feet away.  LeBlanc asked Sivley if he was one of the drivers involved in the accident.  When Sivley responded that he was, LeBlanc repeatedly apologized to him.

Sim, too, testified that she saw two males in LeBlanc’s car.  Although she admitted that she could not tell which was younger and which was older, she did not observe any movement that would have led her to suspect that LeBlanc and Kevin switched places.  Sim also identified LeBlanc as the driver. 

During the punishment phase of the trial, the jury considered evidence of LeBlanc’s two prior DWI convictions and records of multiple positive alcohol findings by the ignition interruption device, showing LeBlanc’s frequent violation of this term of his probation.  The jury also considered evidence offered by the defense, including testimony from LeBlanc’s mother and son that LeBlanc was a good person but that he began to have an alcohol problem after his second wife died, as well as evidence of LeBlanc’s poor health. 

Anders Procedure

The brief submitted by LeBlanc’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 LeBlanc, requested permission to withdraw from the case, and notified LeBlanc of his right to review the record and file a 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, 510 (Tex. Crim. App. 1991).  We also 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).

Thus, our role in this Anders appeal, which consists of reviewing the entire record while remaining mindful of the defendant’s pro se contentions, is limited to determining whether arguable grounds for appeal exist.  See id. at 827.  If we determine that arguable grounds for appeal exist, we abate the appeal and remand the case to the trial court to allow the court-appointed attorney to withdraw.  See id.  Then, the trial court either appoints another attorney to present all arguable grounds for appeal or, if the defendant wishes, allows the defendant to proceed pro se.  See id.  We do not rule on the ultimate merits of the issues raised by LeBlanc in his pro se response.  If we determine that arguable grounds for appeal do exist, LeBlanc is entitled to have new counsel address the merits of the issues raised.  See id.  “Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised.”  Id. 

On the other hand, if our independent review of the record leads us to conclude 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 find no reversible error.  See id. at 826–28.  LeBlanc may challenge the holding that there are no arguable grounds for appeal by petitioning for discretionary review in the Court of Criminal Appeals.  Id. at 827 & n.6. 

Following Anders and Bledsoe, we have reviewed the record, LeBlanc’s appointed counsel’s Anders brief, and LeBlanc’s pro se response to that brief and conclude that no reversible error exists.  Consequently, we affirm the judgment of the trial court and grant LeBlanc’s appointed counsel’s motion to withdraw.[2] 

Conclusion

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

                                                          Jane Bland

                                                          Justice

Panel consists of Justices Nuchia, Hanks, and Bland.

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