LEONARD RAY HASKINS v. THE STATE OF TEXAS--Appeal from 117th District Court of Nueces County

NUMBER 13-05-404-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

LEONARD RAY HASKINS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 117th District Court

of Nueces County, Texas.

  MEMORANDUM OPINION[1]

Before Chief Justice Valdez and Justices Ya ez and Castillo

Memorandum Opinion by Justice Castillo

Appellant Leonard Ray Haskins was indicted,[2] tried before a jury, found guilty of capital murder, and sentenced to life imprisonment. Haskins appealed. The trial court has certified that this is not a plea bargain case and Haskins has the right to appeal. See Tex. R. App. P. 25.2. His court-appointed counsel filed an Anders brief. See Anders v. California, 386 U.S. 738 (1967). We affirm.

I. Background

Before the victim was stabbed, he was robbed and a scuffle occurred. Forensic evidence admitted at trial showed that the victim's blood was on Haskins' clothes. Haskins' blood was on the victim's clothes. Haskins wrote a letter while incarcerated requesting an accomplice say Haskins acted in self-defense and was handed the knife by another co-defendant. In a recorded telephone call from jail to his girlfriend's mother, Haskins admitted that he "cut for [the girlfriend]." In another recorded telephone call from jail, Haskins requested that a witness change her version of the events. Testimony showed that, before the fatal stabbing, Haskins requested the victim to surrender his money and at least one accomplice requested the victim's keys to his vehicle. Haskins fled as police arrived at the scene and fled again two days later when he made eye contact with a police officer.

 II. Anders Brief

A. Court Appointed Counsel's Opinion

Haskins' court-appointed counsel has filed a brief in which she asserts she has thoroughly and diligently reviewed the entire appellate record and the applicable law in compliance with Anders. See id. Haskins' counsel provides discussion of the regularity and adequacy of the following: (1) the indictment, the enhancement paragraph, and the deadly weapon allegation and finding; (2) the legal and factual sufficiency of the evidence; (3) the voir dire proceedings; (4) the objections and rulings; (5) the trial court's charge to the jury; (6) the sentencing proceedings; (7) the legality of the sentence; and (8) the judgment. Counsel asserts that, in her professional opinion, the appeal of the judgment of conviction and sentence in this cause is without merit and is frivolous because the record reflects no reversible error and there are no grounds upon which an appeal can be predicated that would support a reversal or an acquittal. Counsel certifies that she has provided a copy of the Anders brief to Haskins and an explanation of his right to review the record and file a pro se brief. To date, Haskins has not filed a pro se brief. Counsel has filed a motion to withdraw.

B. The Law

Anders addresses the extent of the duty of a court appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal. Anders, 386 U.S. at 739. The requirements of Anders are met in the event appointed counsel thoroughly studies the record, consults with the defendant and trial counsel and conscientiously concludes, and so advises the appellate court, that there are no meritorious grounds of appeal; and provided that the appellate court is satisfied from its own review of the record, in light of any points personally raised by the defendant, that appointed counsel's conclusion is correct. Id. at 741. If counsel finds the case to be wholly frivolous, after a conscientious examination of it, she should so advise the appellate court and request permission to withdraw. Id. at 744. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. Id. A copy of counsel's brief should be furnished to the indigent and time allowed to him to raise any points he chooses; the court B not counsel B then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. Id. If it so finds, it may grant counsel's request to withdraw and dismiss the appeal or proceed to a decision on the merits. Id.

On the other hand, if the appellate court finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal. Id. If the appellate court is satisfied that counsel has diligently investigated the possible grounds of appeal and agrees with counsel's evaluation of the case, then leave to withdraw may be allowed and leave to appeal may be denied. Id. at 741 42. This procedure would not force appointed counsel to brief the case against her client but would merely afford the latter the advocacy which a nonindigent defendant is able to obtain. See id. at 745. It would also induce the appellate court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel. Id.

Accordingly, we must, "after a full examination of all the proceedings, . . . decide whether the case is wholly frivolous." Id. at 744; see Penson v. Ohio, 488 U.S. 75, 80 (1988); accord Stafford v. State, 813 S.W.2d 503, 509 11 (Tex. Crim. App. 1991). An appeal is "wholly frivolous" or "without merit" when it "lacks any basis in law or fact." McCoy v. Court of Appeals, 486 U.S. 429, 439 n.10 (1988). Arguments are frivolous when they "cannot conceivably persuade the court." Id. at 436. An appeal is not wholly frivolous when it is based on "arguable grounds." Stafford, 813 S.W.2d at 511. If 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. Bledsoe v. State, 178 S.W.3d 824, 826 28 (Tex. Crim. App. 2005). The holding that there are no arguable grounds for appeal is subject to challenge by an appellant by a petition for discretionary review filed in the Court of Criminal Appeals. Id. at 827 & n.6.

C. Application

Guided by court-appointed counsel's advocacy in the appellate brief, see Anders, 386 U.S. at 745, our independent review of the appellate record, see Penson, 488 U.S. at 80, and law applicable to the charged offense, we conclude that no arguable grounds for appeal exist and find no reversible error. Bledsoe, 178 S.W.3d at 828. We further conclude that the appeal is wholly frivolous. See id.; McCoy, 486 U.S. at 439 n.10.

III. Disposition

We affirm the trial court judgment of conviction and sentence. An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511(noting that an Anders brief should be filed with request for withdrawal from case). Counsel in this case has requested to withdraw from further representation of Haskins on appeal. We hereby order counsel to advise Haskins of the disposition of this appeal and the availability of discretionary review. See Bledsoe, 178 S.W.3d at 827 & n.6; Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (en banc) (per curiam). We grant counsel's motion to withdraw as Haskin's court appointed counsel on appeal.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b)

Memorandum Opinion delivered and filed

this 27th day of July, 2006.

[1]See Tex. R. App. P. 47.1, 47.4.

[2] The indictment alleged that on or about March 20, 2004, Haskins intentionally caused the death of James Haynes by stabbing him with a knife, a deadly weapon, while in the course of committing or attempting to commit robbery. See Tex. Pen. Code Ann. _19.03(a)(2) (Vernon Supp. 2005) (stating that a person commits capital murder if he commits murder in the course of committing or attempting to commit robbery). The indictment contained an enhancement paragraph alleging a prior conviction for aggravated assault.