IN THE

TENTH COURT OF APPEALS

No. 10-08-00390-CR

ROBERT ALLEN BYRD,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2007-568-C2

M E M O R A N D U M O P I N I O N

Robert Allen Byrd was convicted by a jury of capital murder. TEX. PEN. CODE 

ANN. § 19.03(a)(2) (Vernon 2003). The murder was alleged to have been committed in 

the course of committing or attempting to commit kidnapping. TEX. PEN. CODE ANN. § 

19.03(a)(2). Because the State did not seek the death penalty, Byrd was mandatorily 

assessed punishment at imprisonment for life without parole in the Texas Department 

of Criminal Justice – Institutional Division. TEX. PEN. CODE ANN. § 12.31(a) (Vernon 

2003). We affirm.
Robert Allen Byrd v. The State of Texas Page 2

Byrd's appellate counsel filed an Anders brief and a motion to withdraw as 

counsel. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). 

Counsel concludes that the appeal is frivolous.

Byrd has filed a pro se brief. However, we review Byrd’s brief solely to determine 

if there are any arguable grounds for appeal. Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. 

Crim. App. 2005). See also In re Schulman, 252 S.W.3d 403, 409 n. 23 (Tex. Crim. App. 

2008).

Counsel's brief evidences a professional evaluation of the record for error, and 

we conclude that counsel performed the duties required of appointed counsel. See 

Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also

In re Schulman, 252 S.W.3d at 407.

In reviewing an Anders appeal, we must, "after a full examination of all the 

proceedings, . . . decide whether the case is wholly frivolous." Anders at 744; accord

Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991); Coronado v. State, 996 

S.W.2d 283, 285 (Tex. App.--Waco 1999, order) (per curiam), disp. on merits, 25 S.W.3d 

806 (Tex. App.--Waco 2000, pet. ref'd). 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, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988). Arguments are frivolous when they 

"cannot conceivably persuade the court." McCoy, 486 U.S. at 436. An appeal is not 

wholly frivolous when it is based on "arguable grounds." Stafford, 813 S.W.2d at 511.
Robert Allen Byrd v. The State of Texas Page 3

After a review of the briefs and the entire record in this appeal, we determine the 

appeal to be wholly frivolous. See Bledsoe v. State, 178 S.W.3d at 826-27. Accordingly, we 

affirm the trial court's judgment.

Should Byrd wish to seek further review of this case by the Texas Court of 

Criminal Appeals, Byrd must either retain an attorney to file a petition for discretionary 

review or Byrd must file a pro se petition for discretionary review. Any petition for 

discretionary review must be filed within thirty days from the date of either this 

opinion or the last timely motion for rehearing that was overruled by this Court. See

TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with this Court, 

after which it will be forwarded to the Texas Court of Criminal Appeals along with the 

rest of the filings in this case. See TEX. R. APP. P. 68.3. Any petition for discretionary 

review should comply with the requirements of Rule 68.4 of the Texas Rules of 

Appellate Procedure. See TEX. R. APP. P. 68.4. See also In re Schulman, 252 S.W.3d 403, 409 

n.22 (Tex. Crim. App. 2008) (citing Glover v. State, No. 06-07-00060-CR, 2007 Tex. App. 

LEXIS 9162 (Tex. App.—Texarkana, Nov. 20, 2007, pet. ref’d) (not designated for 

publication).1

Counsel's request that he be allowed to withdraw from representation of Byrd is 

granted. Additionally, counsel must send Byrd a copy of our decision, notify Byrd of 

his right to file a pro se petition for discretionary review, and send this Court a letter 

 

1 We note that counsel has an affirmative duty to ensure that the client has, at some point, been informed 

of his right to file a pro se PDR. The preferred mechanism for this is a letter sent to the client with the 

Anders brief and the motion to withdraw as counsel. In re Schulman, 252 S.W.3d 403, 408 n. 22 (Tex. Crim. 

App. 2008).
Robert Allen Byrd v. The State of Texas Page 4

certifying counsel’s compliance with Texas Rule of Appellate Procedure 48.4. TEX. R.

APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 409 n. 22. 

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed September 23, 2009

Do not publish 

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