### 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 convict ed by a jury of capital murder. T EX
. P EN
. C ODE
A NN . § 19.03(a)(2) (Vernon 2003). The murder was alleged to have been committed in the course of committing or attempting to commit kidnapping. T EX
. P EN
. C ODE A NN . § 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. T EX
. P EN
. C ODE A NN . § 12.31(a) (Vernon 2003). We affirm.Robert Allen Byrd v. The State of Texas Page 2

Byrd's appellate cou nsel 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 brie f 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 evaluati on 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 (T ex. 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, 1 08 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 revi ew 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 th e 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 th e date of either this opinion or the last timely motion for rehearing that was overruled by this Court. See
T EX
. R. A PP
. 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 Cr iminal Appeals along with the rest of the filings in this case. See T EX
. R. A PP
. 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 T EX
. R. A PP
. 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 Ande rs 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. T EX
. R.
A PP
. 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 Septembe r 23, 2009 Do not publish [CRPM]