Revat Rene Vara v. The State of Texas--Appeal from 208th District Court of Harris County

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Opinion issued December 18, 2008 In The Court of Appeals For The First District of Texas NO. 01-07-00291-CR REVAT RENE VARA, Appellant v. STATE OF TEXAS, Appellee On Appeal from the 208th District Court Harris County, Texas Trial Court Cause No. 1061075 MEMORANDUM OPINION The jury found appellant, Revat Rene Vara, guilty of the third-degree felony offense of driving while intoxicated ( DWI ).1 After appellant pleaded true to two enhancement paragraphs, the jury assessed punishment at 25 years in prison. Appellant s court-appointed counsel has filed a motion to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant filed a pro se response, raising the following points: (1) he received ineffective assistance of counsel on appeal; (2) he received ineffective assistance of counsel at trial; and (3) the evidence is legally and factually insufficient to support his conviction.2 We affirm. Anders Procedure Pursuant to Anders, when court-appointed counsel files a motion to withdraw and files a brief in which she concludes that there are no arguable grounds for appeal, we review the record and make an independent determination. See id. (emphasizing that reviewing court and not counsel determines, after full examination of proceedings, whether case is wholly frivolous ); accord Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005); Mitchell v. State, 193 S.W.3d 153, 155 1 See T EX. P ENAL C ODE A NN. § 49.04(a) (Vernon 2003); T EX. P ENAL C ODE A NN. § 49.09(b)(2) (Vernon Supp. 2008). 2 The State waived its opportunity to file a reply to the arguments presented in appellant s pro se response. 2 (Tex. App. Houston [1st Dist.] 2006, no pet.). We consider any pro se response appellant may file to the Anders brief, but we do not rule on the ultimate merits of his response. Bledsoe, 178 S.W.3d at 826 27; Mitchell, 193 S.W.3d at 155 56. 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, 178 S.W.3d at 826 27; Mitchell, 193 S.W.3d at 156. If we find arguable grounds for appeal, we abate the appeal, remand the case to the trial court, and allow the court-appointed attorney to withdraw. Bledsoe, 178 S.W.3d at 826 27; Mitchell, 193 S.W.3d at 156. The trial court then must either appoint another attorney to present all arguable grounds for appeal or allow the defendant to proceed pro se if he desires. Bledsoe, 178 S.W.3d at 826 27; Mitchell, 193 S.W.3d at 156. Analysis In this case, the brief filed by appellant s counsel 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). Appellant s counsel indicates that she has thoroughly reviewed the record. Based on this review, counsel states that she is 3 unable to find any errors which she, in good faith, can urge warranting a reversal of this conviction. Counsel is aware that she had a duty to advance arguable grounds of error. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell, 193 S.W.3d at 154. In her Anders brief, counsel discusses the evidence adduced at the trial, supplies us with references to the record, and provides us with citation to legal authorities. Cf. High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. 1978). The brief also reflects that counsel delivered a copy of the brief to appellant and informed him of his right to file a response, which he has done. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). We have reviewed counsel s brief and appellant s pro se response, and we have conducted an independent examination of the record. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Bledsoe, 178 S.W.2d 826 27; Mitchell, 193 S.W.3d at 155. Based on this review, we conclude that no reversible error exists in the record and that the appeal is wholly frivolous. 4 Conclusion We affirm the judgment of the trial court and grant the motion of appellant s counsel to withdraw.3 Laura Carter Higley Justice Panel consists of Chief Justice Radack and Justices Nuchia and Higley. Do not publish. See TEX. R. APP. P. 47.2(b). 3 Appellant s counsel maintains a duty to inform appellant of the result of this appeal and of the fact that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 827 & n. 6 (Tex. Crim. App. 2005); Stephens v. State, 35 S.W.3d 770, 771 72 (Tex. App. Houston [1st Dist.] 2000, no pet.). 5

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