Arthur James Thomas, Jr. v. State ( 2010 )

Opinion issued July 15, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00268-CR

____________

ARTHUR JAMES THOMAS, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause Nos. 1140832

MEMORANDUM OPINION

Appellant, Arthur James Thomas, Jr., appeals from a judgment convicting him of burglary of a habitation pursuant to the jury’s finding of guilt, for which he was sentenced by the trial court to 30 years in prison.  See Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 2003).  Appellant pleaded not guilty to the charged offense but pleaded true to the two punishment enhancement paragraphs.  Appellant’s court-appointed counsel has filed an Anders briefs in which she states that no valid grounds for appeal exist and that appellant’s appeal is frivolous.  Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant did not file a pro se response.  We conclude no reversible error exists and affirm.

Background

          When Laura Trotter saw appellant on her porch placing items into his backpack, she called the police department.  An officer quickly arrived and arrested appellant, who was identified by Trotter.  He was found to be in possession of items stolen from inside Trotter’s screened porch that was attached to her habitation.  The responding officer opined that entry into Trotter’s porch was made through the unlocked screened porch door. 

          After appellant pleaded not guilty to the jury, his trial attorney conducted jury selection by questioning the jury during voir dire.  Appellant exercised 10 peremptory strikes.  Following the empanelling of the jury, the State called three witnesses. Appellant rested without presenting any evidence and made no objections to the jury charge.  During the trial, appellant’s attorney objected at times to the State’s questions, cross-examined each of the witnesses, requested a directed verdict, and made a closing argument.

          During the punishment phase before the trial court, the court asked appellant if he desired to plead true or not true to the enhancement paragraphs.  He pleaded true.  Appellant also personally told the trial court he agreed to the stipulation of evidence concerning his admission to having committed certain crimes that resulted in convictions.  The trial court asked if appellant desired to testify in the punishment phase and he said he did not.  The State introduced evidence about appellant’s prior convictions without any objection from appellant.   Appellant did not introduce any punishment evidence.  Appellant’s attorney made a closing argument requesting the minimum punishment of 25 years in prison.  The trial court found the enhancement paragraphs true and sentenced appellant to 30 years in prison.

          After filing a notice of appeal, appellant’s trial attorney withdrew on the day appellant was sentenced.  Appellate counsel was appointed that same day. Appellate counsel filed a motion for new trial, including an affidavit from appellant, as well as a request for a hearing on the motion.  The affidavit asserted ineffective assistance of counsel on the grounds that counsel had purportedly failed to convey plea bargain offers, failed to communicate about motions, failed to challenge extraneous offenses, and failed to request a lesser-included offense, as well as other complaints.

          At the motion for new trial hearing, appellant, his trial attorney, and his trial attorney’s law partner each testified. Appellant testified that his attorney had conveyed to appellant a plea bargain offer of 15 years in prison and that the trial court had conveyed an offer of 12 years.  Appellant acknowledges that he rejected the offers, but he claims he did so because his trial attorney told him he could get him an offer of four or five years.  Appellant contends he later told his attorney he wished to accept the 15 year offer but was told the offer had been rescinded. 

          Appellant testified about other complaints about his attorney, including that the attorney spoke to appellant’s mother about appellant, and that his attorney had him stipulate to his prior convictions when appellant had not gone to the penitentiary for one of the offenses. Appellant claimed he thought the house he entered was for rent, as he had no intent to burglarize it.   Appellant testified that his trial attorney’s law partner came to him posing as a prosecutor when he threatened appellant into taking a plea bargain for 25 years in prison.  Appellant claimed his trial attorney refused to allow him to testify and refused to request a jury charge for a lesser-included offense.    

          In contrast to appellant’s testimony, the trial attorney and law partner denied each of the allegations made by appellant. The law partner testified that he did go speak to appellant, explained to appellant that he was an attorney representing him, and advised him that 25 years in prison was the statutory minimum. Appellant’s trial attorney testified that he conveyed all plea bargain offers to appellant.  The trial attorney said that, when he obtained background information about appellant from appellant’s mother, he discussed the punishment range with her but did not reveal confidential information to her or ask her to convince appellant to accept a plea bargain.  The trial attorney explained that appellant never said he did not want to stipulate to the prior convictions or that he had not been to the penitentiary on one of the cases.  The trial attorney testified that appellant decided not to testify after the attorney explained the pros and cons of testifying. 

          The trial court denied appellant’s motion for new trial.  Appellant’s court-appointed appellate attorney filed a motion to withdraw as counsel and a brief in support of that motion.  In the brief, counsel asserts that this appeal is frivolous.

Anders Procedure

          The brief submitted by appellant’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).

          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.  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 is limited to determining whether arguable grounds for appeal exist.  Bledsoe, 178 S.W.3d 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 appellant in his pro se response.  Id. If we determine that there are arguable grounds for appeal, 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. Bledsoe, 178 S.W.3d at 826–27. The holding that there are no arguable grounds for appeal is subject to challenge by an appellant 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, appellant’s appointed counsel’s Anders brief, and appellant’s pro se Notice of Appeal and Motion for New Trial and Sentence and conclude that no reversible error exists.

Conclusion

          We affirm the judgment of the trial court and grant appointed counsel’s motion to withdraw.[1]

PER CURIAM

Panel consists of Justices Alcala, Massengale, and Wilson.[2]

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

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[1]           Appointed counsel still has a duty to inform appellant 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.).

[2]           The Honorable Davie L. Wilson, retired Justice, First Court of Appeals,       participating by assignment.