1

John T.Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003). 

NO. 07-02-0323-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

AUGUST 13, 2003

______________________________

ROBERT STEVEN LAND, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 45,142-E; HONORABLE ABE LOPEZ, JUDGE

_______________________________

Before JOHNSON, C.J., REAVIS, J., and BOYD, S.J.1

On June 24, 2002, after his plea of guilty and the receipt of testimony, appellant

Robert Steven Land was found guilty of the state jail felony offense of evading detention

while using a vehicle. His punishment was assessed by the trial court at 12 months

confinement in a state jail facility. Appellant timely gave notice of appeal.
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Appellant’s appellate counsel has now filed an Anders brief with this court in which

he states that he has thoroughly examined the trial record and determined the appeal is

without merit. See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d

493 (1967), and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). In the brief,

counsel discusses four potential issues on appeal and explains why the record shows that

none of those issues present reversible error. In the brief, counsel has attached a copy

of his letter to appellant, forwarded a copy of the brief and advised him of his right to file

a pro se brief. He has also filed a motion to withdraw and notified appellant that he has

filed the motion. See Johnson v. State, 885 S.W.2d 641 (Tex. App.–Waco 1994, pet.

ref’d). Neither appellant or the State has filed a brief.

Before allowing counsel to withdraw, we must first satisfy ourselves that the attorney

has provided the client with a diligent and thorough search of the record for any arguable

claim that might support the client’s appeal, and then we must determine whether counsel

has correctly concluded the appeal is frivolous. See McCoy v. Court of Appeals of

Wisconsin, 486 U.S. 429, 442, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988).

Each of the issues raised in the Anders brief by counsel address whether appellant

was denied reasonably effective assistance of counsel because his trial counsel: 1) failed

to seek exclusion of other witnesses from the courtroom until they were called to testify,

2) failed to cross-examine the State’s witnesses, and 3) failed to raise hearsay objections

that would have prevented the admission of testimony about statements made by absent

witnesses that corroborated the State’s evidence.
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The brief filed by appellate counsel discusses the trial evidence with appropriate

references to the record. See High, 573 S.W.2d at 813 (noting requirement that trial

counsel discuss evidence). The test for ineffective assistance of counsel set out in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and

adopted by our Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.

Crim. App. 1986), contains two prongs. 

 Under the first prong, an appellant must show that trial counsel’s performance was

“deficient.” Strickland, 466 U.S. at 687. That requires a showing that counsel made errors

so serious that he was not functioning as the “counsel” guaranteed a defendant by the

Sixth Amendment to the Federal Constitution. Id. To be successful in this regard, an

appellant must show that his trial counsel’s representation fell below an objective standard

of reasonableness. Id. at 688.

Under the second prong, an appellant must show that the deficient performance

prejudiced the defense. Id. at 687. The standard for judging prejudice requires an

appellant to show that there is a reasonable probability that but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is one sufficient to undermine confidence in the outcome. Id. at

694. To be entitled to reversal, an appellant must establish both prongs of the test. White

v. State, 999 S.W.2d 895 (Tex. App.–Amarillo 1999, pet. ref’d).
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We have also made an independent examination of the record to determine if there

are any arguable grounds that might support the appeal. See Penson v. Ohio, 88 U.S. 75,

109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and Stafford v. State, 813 S.W.2d 503, 511 (Tex.

Crim. App. 1991). We have found no such grounds and agree with counsel that the appeal

is without merit and is frivolous. Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974).

Accordingly, the judgment of the trial court is affirmed and counsel’s motion to

withdraw is granted. 

John T. Boyd

Senior Justice

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