Otis Seamster v. The State of Texas--Appeal from 283rd District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-00-025-CR

OTIS SEAMSTER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 283rd District Court

Dallas County, Texas

Trial Court # F99-71480

O P I N I O N

Otis Seamster pled guilty to the offense of Aggravated Sexual Assault. The victim was a child younger than 14 years of age. Seamster pled guilty without the benefit of a plea recommendation from the State. The trial court accepted his plea of guilty, found the evidence substantiated a finding of guilt, and reset the cause for sentencing the next week. After Seamster and a defense witness testified, the trial court sentenced Seamster to 15 years in prison. Seamster filed a notice of appeal.

Seamster s counsel on appeal filed a motion to withdraw with a supporting Anders brief. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967). Counsel notified Seamster that he had the right to file his own pro-se brief. She also provided him with a copy of the Anders brief, the reporter s record and the clerk s record. See Sowels v. State, No. 10-99-307-CR, slip op. at 7-8 (Tex. App. Waco March 28, 2001, no pet. h.). Seamster has not filed any kind of pro-se brief or other response. We now decide whether the case is . . . frivolous as claimed by counsel. See Taulung v. State, 979 S.W.2d 854, 855 (Tex. App. Waco 1998, no pet.).

Counsel considers the indictment, pretrial motions, Seamster s guilty plea, the sufficiency of the evidence, the judgment and sentence, and the effectiveness of trial counsel in her brief. Counsel's brief also contains references to both the record and applicable statutes, rules, and cases and discusses why counsel concludes that the appeal is frivolous. See Sowels, No. 10-99-307-CR, slip op. at 1. We have independently reviewed the record and agree that there are no issues which might arguably support an appeal. Id.

In the past, our practice in such cases has been to grant counsel s motion to withdraw and affirm the judgment. See, e.g., Taulung, 979 S.W.2d at 858. However, we have more recently concluded that this Court does not have authority to permit an appointed counsel to withdraw in Anders cases. See Sowels, No. 10-99-307-CR, slip op. at 4. Rather, a request for such relief must be directed to the trial court. Id.

Because counsel has not been permitted to withdraw and because we are affirming Seamster s judgment and sentence, counsel must advise Seamster of the result of this appeal and of his right to file a pro se petition for discretionary review. Id.; see also Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).

Therefore, we dismiss counsel s motion to withdraw and affirm the judgment.

TOM GRAY

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed April 18, 2001

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