Roy Anthony Stewart v. The State of Texas--Appeal from 411th District Court of Polk County

In The
Court of Appeals
Ninth District of Texas at Beaumont
______________________
NO. 09-06-275 CR
______________________
ROY ANTHONY STEWART, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 411th District Court
Polk County, Texas
Trial Cause No. 18260
MEMORANDUM OPINION
Roy Anthony Stewart appeals his conviction for felony theft. Appellate counsel filed a brief that concluded no arguable error is presented in this appeal. (1) We granted appellant an extension of time in which to file a pro se response, and he filed a response brief raising three appellate issues.

In his first issue, Stewart argues that the trial judge should have been disqualified because the judge acted as the prosecutor in one of Stewart's previous convictions, and presided over another previous conviction. He argues that this issue may be raised for the first time on appeal. In his second issue, he asserts that several jurors were biased and should have been disqualified, and a juror favorable to the defense was erroneously excused based on the juror's views concerning factual issues in the case. In issue three, Stewart argues trial counsel was ineffective for failing to suppress evidence obtained without a warrant; failing to prevent the State from mentioning his criminal past during voir dire; failing to disqualify biased jurors; and failing to make more objections at trial. Stewart also appears to challenge the factual sufficiency of the evidence supporting his conviction.

The Court of Criminal Appeals directs that the reviewing court not address the merits of issues raised in Anders briefs or pro so responses. Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). An appellate court may determine either: (1) "that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error"; or (2) "that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues." Id.

We have determined this appeal is wholly frivolous. This Court has independently examined the clerk's record and the reporter's record, and finds no arguable error. See id. Appointment of new counsel is not required. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Appellant is free to file a petition for discretionary review raising error by this Court in the instant appeal. (2) See Bledsoe, 178 S.W.3d at 827. We affirm the trial court's judgment.

AFFIRMED.

DAVID GAULTNEY

Justice

 

Submitted on June 19, 2007

Opinion Delivered September 12, 2007

Do Not Publish

 

Before McKeithen, C.J., Gaultney and Horton, JJ.

1. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

2. However, while an appellant has a right to file a petition for discretionary review with the Court of Criminal Appeals, review is not a matter of right. Bledsoe, 178 S.W.3d at 827 n.6 (citing Tex. R. App. P. 66.2; Tex. Const. art. V, 5(b)).