Stacey Kirven v. State ( 2009 )

IN THE
TENTH COURT OF APPEALS
No. 10-08-00064-CR
STACEY KIRVEN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 77th District Court
Limestone County, Texas
Trial Court No. 11381-A
CONCURRING OPINION
This is an Anders appeal. The brief in support of counsel’s motion to withdraw is
only 13 pages. It is well done and is more than adequate to allow the Court to perform
the analysis to reach the conclusion we are required to reach in a proper Anders appeal;
that counsel has performed a professional evaluation of this record and concluded there
are no issues of arguable merit.
Where the Court errs in its 15 page opinion is in reviewing the merits of each of
the “arguable issues of law” identified by appointed counsel, each of which is
determined by appointed counsel to be wholly frivolous and without arguable merit. It
is not our duty to review the merits of those issues. Bledsoe v. State, 178 S.W.3d 824, 827
(Tex. Crim. App. 2005) (“Only after the issues have been briefed by new counsel may the
court of appeals address the merits of the issues raised.” (Emphasis added.)). Rather,
our duty is to conduct an independent review of the entire record, without limiting our
review to only those areas discussed by counsel. Stafford v. State, 813 S.W.2d 503, 511
(Tex. Crim. App. 1991); Villanueva v. State, 209 S.W.3d 239, 249 (Tex. App.—Waco 2006,
no pet.)(Gray, C.J., concurring); accord Garner v. State, No 10-05-00218-CR, 2007 Tex.
App. LEXIS 4246, *17-19 (Tex. App.—Waco May 30, 2007, pet. granted)(Gray, C.J.,
dissenting). In fact, by spending an excessive amount of time and focusing on those
areas, we deprive the defendant of the fundamental protection of the Anders procedure
of conducting an independent review of the entire record.
I propose that the following is a proper balance in an opinion wherein we
conclude the attorney has conducted the professional evaluation of the record and we
have conducted our independent examination.
A jury convicted Stacey Kirven of aggravated robbery and
kidnapping. See TEX. PENAL CODE ANN. §§ 29.03 and 20.03 (Vernon 2003).
The trial court sentenced Kirven to fifty years in prison for aggravated
robbery and twenty years in prison for kidnapping. Kirven’s appellate
counsel filed an Anders brief. See Anders v. California, 386 U.S. 738, 87 S. Ct.
1396, 18 L. Ed. 2d 493 (1967).
Counsel informed Kirven of the right to file a brief, but Kirven did
not file one. Because of Kirven’s inaction, the State was not obligated to
file a response. See Wilson v. State, 955 S.W.2d 693, 697 (Tex. App.—Waco
1997, order). Counsel’s brief reviews the legal and factual sufficiency of
the evidence, potential error during voir dire, potential error during the
trial on the merits, and potential jury charge error. Counsel concludes that
the appeal is frivolous.
Counsel’s brief evidences a professional evaluation of the record for
error, and we conclude that counsel performed the duties required of
appointed counsel. See Anders at 744; High v. State, 573 S.W.2d 807, 812
Kirven v. State Page 2
(Tex. Crim. App. 1978); see also In re Schulman, 252 S.W.3d 403, 407 (Tex.
Crim. App. 2008).
In reviewing an Anders appeal, we must, “after a full examination
of all the proceedings, . . . decide whether the case is wholly frivolous.”
Anders at 744; accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim.
App. 1991); Coronado v. State, 996 S.W.2d 283, 285 (Tex. App.—Waco 1999,
order) (per curiam), disp. on merits, 25 S.W.3d 806 (Tex. App.—Waco 2000,
pet. ref’d). 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 (1988). Arguments are frivolous when they “cannot conceivably
persuade the court.” Id. at 436. An appeal is not wholly frivolous when it
is based on “arguable grounds.” Stafford at 511.
After a review of the entire record in this appeal, we determine the
appeal to be wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27
(Tex. Crim. App. 2005). Accordingly, we affirm the trial court’s judgment.
Counsel’s request that he be allowed to withdraw from
representation of Kirven is granted. Counsel has already notified Kirven
of his right to file a pro se petition for discretionary review as part of his
“educational burdens” he satisfied when filing his Anders brief. Further,
the Court of Criminal Appeals has validated the method of notification
used by counsel. See In re Schulman, 252 S.W.3d 403, 412 n.34 (Tex. Crim.
App. 2008); Meza v. State, 206 S.W.3d 684, 689 n.23 (Tex. Crim. App. 2006);
Ex parte Owens, 206 S.W.3d 670, 674 n.28 (Tex. Crim. App. 2006).
However, pursuant to the Rules of Appellate Procedure, counsel must,
nevertheless, send Kirven a copy of our decision and notify Kirven of his
right to file a pro se petition for discretionary review. TEX. R. APP. P. 48.4;
see In re Schulman, 252 S.W.3d 403, 409 n. 22 (Tex. Crim. App. 2008).
CONCLUSION
I cannot join the majority opinion. I concur in the Court’s judgment only to the
extent it affirms the trial court’s judgment and grants counsel’s motion to withdraw.
TOM GRAY
Chief Justice
Concurring Opinion issued and filed on May 13, 2009
Publish
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