Donald R. Pease v. The State of Texas--Appeal from 137th District Court of Lubbock County
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NO. 07-08-0184-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D MARCH 13, 2009 ______________________________ DONALD R. PEASE, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2007-415,574; HONORABLE CECIL G. PURYEAR, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. MEMORANDUM OPINION Following a plea of not guilty, Appellant, Donald R. Pease, was convicted by a jury of aggravated robbery with an affirmative finding on use of a deadly weapon and sentenced to twenty-eight years confinement. In presenting this appeal, counsel has filed an Anders1 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, 74445, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex.Crim.App. 2008). Counsel has candidly discussed 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 408.2 By letter, this Court granted Appellant thirty days in which to exercise his right to file a response to counsel s brief, should he be so inclined. Id. at n.23. Appellant did not file a response. Neither did the State favor us with a brief. 1 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). 2 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. In re Schulman, at 408 fn.22 & at 411 fn.35. 2 Potential Issues By the Anders brief, counsel raises three potential issues, to-wit: (1) the evidence was legally insufficient to support Appellant s conviction; (2) the evidence was factually insufficient to support Appellant s conviction; and (3) the non-accomplice evidence was insufficient to corroborate the testimony of Clifford Johnson, Appellant s co-actor. Counsel then explains why the issues have no merit. 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, 109 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 (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 (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
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