Gary Don Bacon v. The State of Texas--Appeal from 177th District Court of Harris County

Issued January 31, 2008

Issued January 31, 2008

 

In The

Court of Appeals

For The

First District of Texas

 

NO. 01-07-00072-CR

 

GARY DON BACON, Appellant

V.

THE STATE OF TEXAS, Appellee

 

 

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1057621

 

 

 

MEMORANDUM OPINION

A jury convicted Gary Bacon of murder and, upon finding true two enhancements included in the indictment, assessed punishment at twenty-five years confinement. Tex. Pen. Code Ann. 19.02 (Vernon 2007). Bacon 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. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Bacon responded pro se. In his first and second issues, Bacon asserts that the trial court abused its discretion in allowing the State to call witnesses that were not disclosed in response to a discovery order or on the subpoena list. Alternatively, Bacon claims the trial court erred in not granting a continuance to allow him to prepare for this testimony. In his third and fourth issues, Bacon contends that his trial counsel was ineffective and asserts that he should be granted a new trial because he did not receive a complete reporter s record. We have reviewed the record and, having found no arguable ground for appeal, we affirm Bacon s conviction.

Background

On February 11, 2006, around midnight, Bacon and two friends stopped by their neighborhood gas station. Upon entering the convenience store, Bacon encountered the complainant, Anthony Jackson. Bacon had loaned Jackson his cell phone sometime before, and asked Jackson to return it. Jackson did not have it with him, and an argument ensued. As the argument continued, they left the store, presumably to fight in the parking lot. Not long after, Bacon pulled out a firearm. Jackson turned to flee, but Bacon shot him in the back of the head. Jackson s girlfriend was in her car in the parking lot, and immediately went to his aid. Bacon walked over to Jackson, and then walked back to his car and left the scene. Jackson died at the hospital several hours later.

At trial, Bacon claimed that Jackson had pulled up his shirt to reveal a gun. Bacon testified that his life was in danger, and he shot Jackson in self-defense. Bacon s two friends, who had accompanied him to the gas station, testified that they did not see Jackson with a weapon at any time. A witness at the scene also testified that she did not see Jackson with a gun. The police did not find any weapons on Jackson or at the scene. Jackson s girlfriend testified that she stayed with Jackson until the ambulance arrived and did not see anyone remove anything from Jackson s body. When he learned that the police were looking for him, Bacon turned himself in.

 Anders Procedure

The brief submitted by Bacon 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). Counsel sent a copy of the brief to Bacon, requested permission to withdraw from the case, and notified Bacon of his right to review the record and file a 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). We also consider any pro se response, which 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).

Thus, our role in this Anders appeal, which consists of reviewing the entire record while remaining mindful of the defendant s pro se contentions, 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 either appoints another attorney to present all arguable grounds for appeal or, if the defendant wishes, allows the defendant to proceed pro se. See id. We do not rule on the ultimate merits of the issues raised by Bacon in his pro se response. If we determine that arguable grounds for appeal do exist, Bacon 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. See id. at 826 28. Bacon 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, Bacon s appointed counsel s Anders brief, and Bacon s pro se response to that brief and conclude that no arguable ground for appeal exists. Accordingly, we affirm the judgment of the trial court and grant Bacon 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 Jennings and Bland.

Do not publish. Tex. R. App. P. 47.4.

 

[1] 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 v. State, 178 S.W.3d 824, 827 (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.).