James DeWitt Burton aka James Earl Henderson aka Michael White v. The State of Texas--Appeal from 174th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-135-CR

&

No. 10-93-136-CR

JAMES DeWITT BURTON a/k/a

JAMES EARL HENDERSON a/k/a

MICHAEL WHITE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 174th District Court

Harris County, Texas

Trial Court Nos. 645,195 & 645,197

MEMORANDUM OPINION

On September 20, 1993, James Burton's appointed attorney filed an Anders brief, asserting that any appeal of Burton's attempted capital murder and aggravated robbery convictions would be frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). In connection with his Anders brief, the attorney requested permission to withdraw from the appeal. After reviewing the brief and conducting an independent review of the record of Burton's trial, we grant the motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 83-84, 109 S. Ct. 346, 351-52, 102 L. Ed. 2d 300 (1988); McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 437, 108 S. Ct. 1895, 1901, 100 L. Ed. 2d 440 (1988).

Also accompanying the brief was a motion for extension of time for Burton to file a pro-se brief. We granted that motion and extended the due date for his brief to October 20. Burton filed a second motion for extension of time on October 19, alleging that he had not had access to the record. Although we denied his motion, we abated the appeal on January 26, 1994, instructing the judge to hold a hearing to ensure that Burton had access to the record. The trial court did not file findings of fact and conclusions of law as instructed, but ordered the Harris County District Clerk to provide Burton with a copy of the record. On April 12 Burton received his copy. However, he has not filed a pro-se brief since receiving the record. The Anders brief filed by Burton's attorney properly contained no points of error. See Johnson v. State, No. 10-94-035-CR (Tex. App. Waco, October 19, 1994) (not yet reported). Burton has not filed a brief. Thus, because we have no viable points of error to consider, the judgment is affirmed. See Tex. R. App. P. 81(b)(2), 90(a).

PER CURIAM

Before Chief Justice Thomas,

Justice Cummings, and

Justice James (Retired)

Affirmed

Opinion delivered and filed November 23, 1994

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