Gregory Wayne Ardoin v. State ( 2011 )

Opinion issued June 16, 2011.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00568-CR

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GREGORY WAYNE ARDOIN, Appellant

V.

The State of Texas, Appellee

On Appeal from the 252nd District Court  

Jefferson County, Texas

Trial Court Case No. 09-05546

MEMORANDUM OPINION

          Appellant, Gregory Wayne Ardoin, pleaded guilty to the second-degree felony offense of burglary of a habitation with a plea agreement of deferred adjudication and placement on community supervision for five years.  See Tex. Penal Code Ann. §§ 30.02(a)(3), 30.02(c)(2) (West 2010). The State subsequently moved to revoke the community supervision.  After a hearing, the trial court found true the State’s allegations that Ardoin had violated the conditions of his community supervision, revoked it, and sentenced him to twenty years’ confinement.   Ardoin’s court-appointed appellate counsel filed a motion to withdraw along with a brief stating his professional opinion that the appeal is without merit and that there are no arguable grounds for reversal.  See Anders v. California, 386 U.S. 738, 744 (1967).  Ardoin has not submitted a pro se reply brief.  We have reviewed the record in its entirety and, having found no reversible error, we grant counsel’s motion to withdraw and affirm the judgment of the trial court.

Background

In February 2009, the State charged Ardoin by indictment with burglary of a habitation.  In March 2009, he pleaded guilty to the offense with an agreed punishment recommendation of deferred adjudication and a five hundred dollar fine.  The court ordered deferred adjudication and placed Ardoin under community supervision for a term of five years subject to a variety of conditions.  In May 2010, the State moved to revoke Ardoin’s community supervision, alleging in six counts that he violated its terms.  Ardoin pleaded true to four of the six counts, specifically that: (1) he committed the offense of damage to property and resisting a police officer in another state; (2) he failed to report to the probation department for seven months; (3) he failed to report to the probation office on a weekly basis, and (4) he left the state without permission.  The trial court found that Ardoin violated these four terms, revoked his community supervision, and assessed his punishment at twenty years’ confinement.  Ardoin timely filed his notice of appeal.  The trial court certified appellant's right to appeal by stating that this   “is not a plea-bargain case, and the defendant has the right to appeal.”

Discussion

The brief submitted by Ardoin’s court-appointed appellate counsel states his professional opinion that no arguable grounds for reversal exist, and any appeal would, therefore, lack merit.  Anders, 386 U.S. at 744.  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 Ardoin, requested permission to withdraw from the case, and notified Ardoin of his right to review the record and file a pro se response.  Ardoin filed a pro se notice of appeal, but never filed a separate 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 (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).  Any pro se response is also considered.  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, 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 appoints another attorney to present all arguable grounds for appeal.  See id.  If we determine that arguable grounds for appeal do exist, Ardoin 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.  Bledsoe, 178 S.W.3d at 826–28. Ardoin 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 and counsel’s Anders brief.  We conclude that no reversible error exists. Consequently, we affirm the judgment of the trial court and grant counsel’s motion to withdraw.[*]

Conclusion

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

                                                                   Jane Bland

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Bland and Wilson[†].

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

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[*]           Appointed counsel still has a duty to inform appellant of the result of this appeal, send appellant a copy of this opinion and judgment, and notify appellant that he may, on his own, pursue discretionary review in the Court of Criminal Appeals.  Tex. R. App. P. 48.4; see also Bledsoe, 178 S.W.3d at 827; 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.).

[†]           The Honorable Randy Wilson, Judge of the 157th District Court of Harris County, participating by assignment.