IN THE TENTH COURT OF APPEALS No. 10-12-00143-CR CHARLES ANDREW SILVA, Appellant v. THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2011-1825-C2

MEMORANDUM OPINION

Charles Silva was found guilty of aggravated sexual assault and sentenced to twenty-eight years in prison. Silva’s appointed appellate counsel has filed a motion to withdraw and an Anders brief, asserting that he has diligently reviewed the appellate record and that, in his opinion, the appeal is frivolous.1 See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

1 Appointed appellate counsel identifies a potential issue (ineffective assistance) but concludes that it would be unsuccessful on direct appeal. We agree. Silva’s pro se response also raises ineffective assistance, but it is not potentially arguable on direct appeal.

In an Anders case, we must, “after a full examination of all the proceedings, [] decide whether the case is wholly frivolous.” Anders, 386 U.S. at 744, 87 S.Ct. at 1400; accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is “wholly frivolous” or “without merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486 U.S. 429, 439 n.10, 108 S.Ct. 1895, 1902 n.10, 100 L.Ed.2d 440 (1988).

We have conducted an independent review of the record, and because we find this appeal to be wholly frivolous, we affirm the judgment. We grant appointed counsel’s motion to withdraw from representation of Silva. Notwithstanding this grant, appointed counsel must send Silva a copy of our decision, notify him of his right to file a pro se petition for discretionary review, and send this Court a letter certifying counsel’s compliance with Texas Rule of Appellate Procedure 48.4. TEX. R. APP. P. 48.4; see also Ex parte Owens, 206 S.W.3d 670, 673-74 (Tex. Crim. App. 2006).

REX D. DAVIS Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed February 7, 2013 Do not publish [CRPM]

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