Bernie Mac Wall A/K/A Bernie MacK Wall v. State ( 2010 )

NO. 07-10-0011-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
NOVEMBER 9, 2010
BERNIE MAC WALL AKA BERNIE MACK WALL,
APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY;
NO. CR11138; HONORABLE RALPH H. WALTON, JR., JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Bernie Mac Wall a/k/a Bernie Mack Wall, was convicted by a jury of
attempted kidnapping, enhanced by prior felony convictions, for aggravated sexual
assault by threats of violence and force, burglary of a vehicle, and theft from a person.1
He was sentenced to twenty years confinement and fined ten thousand dollars. In
1
See Tex. Penal Code Ann. § 20.03 (Vernon 2003); Id. at §§ 12.35(c), 12.42(a)(3) (Vernon Supp. 2010).
presenting his appeal, counsel has filed an Anders2 brief in support of a motion to
withdraw. We grant counsel's motion and affirm.
In support of his motion to withdraw, counsel certifies he has conducted a
conscientious examination of the record and, in his opinion, the record reflects no
potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738,
744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406
(Tex.Crim.App. 2008). Counsel candidly discusses why, under the controlling
authorities, the appeal is frivolous. See High v. State, 573 S.W.2d 807, 813
(Tex.Crim.App. 1978). Counsel has also demonstrated that he has complied with the
requirements of Anders and In re Schulman by (1) providing a copy of the brief to
Appellant, (2) notifying him of his right to file a pro se response if he desired to do so,
and (3) informing him of his right to file a pro se petition for discretionary review. In re
Schulman, 252 S.W.3d at 408.3 Neither the State nor Appellant filed a response to
counsel's brief.
By his Anders brief, counsel raises two arguable issues: (1) whether the
evidence is legally and factually sufficient to support the trial court's judgment4 and (2)
2
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
3
Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary review
upon execution of the Trial Court's Certification of Defendant's Right of Appeal, counsel must comply with
Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days
after this opinion is handed down, send Appellant a copy of the opinion and judgment together with
notification 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.2d at 408 n.22 & 411 n.35.
4
See Brooks v. State, No. PD-0210-09, 2010 Tex. Crim. App. LEXIS 1240, at *57 (Tex.Crim.App. Oct. 6,
2010) (abandoning factual sufficiency as an evidentiary sufficiency standard).
2
whether the trial court erred by permitting a state jail felony offense to be punished as a
second degree felony. Counsel then candidly reviews each arguable issue and
explains why no reversible error is presented.
We have reviewed counsel's arguments and we have independently examined
the entire record to determine whether there are any non-frivolous issues which might
support the appeal. See Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 S. Ct.
346, 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d at 409; Stafford v. State, 813
S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such issues. See Gainous
v. State, 436 S.W.2d 137, 138 (Tex.Crim.App. 1969). After reviewing the record and
counsel's brief, we agree with counsel that there are no plausible grounds for appeal.
See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005).
Accordingly, counsel's motion to withdraw is granted and the trial court's
judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
3