German Monroy v. The State of Texas--Appeal from 337th District Court of Harris County

Opinion issued November 30, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00918-CR

GERMAN MONROY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1011779

MEMORANDUM OPINION

Appellant German Monroy pleaded guilty to the third-degree felony offense of intoxication assault. Tex. Pen. Code Ann. 49.07(a)(1) (Vernon 2003). The trial court assessed punishment at seven years confinement. Monroy s counsel on appeal has submitted a brief stating her professional opinion that the appeal is without merit and that there are no arguable grounds for reversal on appeal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Monroy filed a pro se response. In one issue, Monroy contends his trial counsel was ineffective in failing to verify that Monroy had liability insurance on the day of the car accident that resulted in criminal charges. Monroy contends that his counsel s failure caused him to testify falsely at his punishment hearing, resulting in a greater sentence. No record of this testimony exists because Monroy waived his right to have a court reporter at his punishment hearing. We have reviewed the record and, having found no reversible error, we affirm Monroy s conviction.

 Anders Procedure

The brief submitted by Monroy 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 Andersrequirements 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 Monroy, requested permission to withdraw from the case, and notified Monroy of his right to review the record and to file a pro se response. The State waived its opportunity to file a reply to the arguments presented in Monroy s pro se 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, 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, which includes reviewing the pro se response by Monroy, is limited to determining whether arguable grounds for appeal exist. Id. at827. 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 Monroy in his pro se response. Id. If we determine that there are arguable grounds for appeal, Monroy 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. See id. at 826 28. The holding that there are no arguable grounds for appeal is subject to challenge by Monroy 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, Monroy s appointed counsel s Anders brief, and Monroy s pro se response to that brief and conclude that no reversible error exists. Having reached that conclusion, we affirm the judgment of the trial court and grant Monroy s appointed counsel s motion to withdraw.[1]

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 Alcala and Bland.

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

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