APPELLANT v. << (2012)

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

The State of Texas

STATE

MEMORANDUM OPINION1

Appellant Morris Clay Mackey entered open pleas of guilty to two counts of aggravated sexual assault.   See Tex. Penal Code Ann. § 22.021 (West Supp.2011).   A jury found him guilty of each count pursuant to an instructed verdict and, after a trial on punishment, assessed his punishment at twenty-seven years' imprisonment for each count.   The trial court sentenced him accordingly, ordering that the sentences run consecutive to Mackey's previously-entered sentence of twenty years' imprisonment for a different offense.

Mackey's court-appointed appellate counsel has filed a motion to withdraw as counsel and a brief in support of that motion.   Counsel's brief and motion meet the requirements of Anders v. California ² by presenting a professional evaluation of the record demonstrating why there are no arguable grounds for relief.   This court afforded Mackey the opportunity to file a brief on his own behalf, and he has done so.

As the reviewing court, we must conduct an independent evaluation of the record to determine whether counsel is correct in determining that the appeal is frivolous.   See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991);  Mays v. State, 904 S.W.2d 920, 923 (Tex.App.—Fort Worth 1995, no pet.).   Only then may we grant counsel's motion to withdraw.   See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S.Ct. 346, 351 (1988).

We have carefully reviewed the record, counsel's brief, and Mackey's pro-se brief.   We agree with counsel that this appeal is wholly frivolous and without merit;  we find nothing in the record that arguably might support an appeal.   See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex.Crim.App.2005).   Accordingly, we grant counsel's motion to withdraw and affirm the trial court's judgment.

PANEL:  WALKER, J.;   LIVINGSTON, C.J.;   and DAUPHINOT, J.

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

DELIVERED:  April 5, 2012

FOOTNOTES

FN1. See Tex.R.App. P. 47.4..  FN1. See Tex.R.App. P. 47.4.

FN2. 386 U.S. 738, 87 S.Ct. 1396 (1967)..  FN2. 386 U.S. 738, 87 S.Ct. 1396 (1967).