Opinion issued August 30, 2012

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 10
- 00048
- CR

——————————— JAMALL JEROME MCMURR IN , Appellant V. THE STATE OF TEXAS , Appellee
On Appeal from the 212th District Court Galveston County, Texas Trial Court Ca se No. 09CR1888 

### MEMORANDUM O PINION After the district court’s pretrial order overruled his written motion to
suppress, a ppellant Jamall Jerome McMurrin pleaded guilty to possession of less than one gram of methylenedioxy methamphetamine. See T EX
. H EALTH & S AFETY C ODE A NN
. §§ 481.103(a)(1), .116 (West 2010) ; T EX
. R. A PP
. P. 25.2(a)(2)

. The2 brief submitted by appellant’s court

- appointed appellate counsel states h is professional opinion that there are no arguable grounds f or reversal on appeal and that any appeal would, therefore, be wholly frivolous. See Anders v. California , 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant did not file a pro se
response , and the State did not file a brief. When this Court rece ives an Anders brief from a defendant’s
court

- appointed attorney who asserts that an appeal would be wholly frivolous, we must determine that issue independently by conducting our own review of the entire record. Anders , 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court

— and not counsel

— determines, after full examination of proceedings, whether case is “wholly frivolous”); Stafford v. State , 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). In conducting our review, we consider any pro
se resp onse that the defendant files to his appointed counsel’s Anders brief. See Bledsoe v. State , 178 S.W.3d 824, 826

– 27 (Tex. Crim. App. 2005). Our role is limited to determining whether arguable grounds for appeal exist. Id. at 827. If we determine that a rguable grounds for appeal exist, we must abate the appeal and remand the case to the trial court to allow the court

- appointed attorney to withdraw. Id. The trial court must then either appoint another attorney to present all arguable grounds for appeal or, if the defendant wishes, allow the defendant to proceed pro se. Id. We do not rule on the ultimate merits of issues3 raised by a defendant in his pro se response. Id. If we determine that there are arguable grounds for appeal, the defendant is entitled to have new counsel address the merits of the issues raised. Id. “Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised.” Id. If, on the other hand, we determine, from our independ ent review of the entire record, that the appeal is wholly frivolous, we may affirm the trial court’s judgment by issuing an opinion in which we explain that we have reviewed the record, determined that the appeal is wholly frivolous, and concluded there i s no reversible error. See id. at 826. The holding that there are no arguable grounds for appeal is subject to challenge by a defendant by a petition for discretionary review filed in the Court of Criminal Appeals. Id. at 827 & n.6. In accordance with Anders , 386 U.S. at 744

– 45, 87 S. Ct. at 1400, and Bledsoe , 178 S.W.3d at 826

– 27, we have reviewed the record and appellant’s appointed counsel’s Anders brief. Appellate counsel did not discuss in any way that the district clerk ha d informed this Court th at the videotape admitted during the motion

- to

- suppress hearing was not on file. We subsequently ordered th e trial court to make findings on whethe r the videotape had been lost or destroyed. The trial court found the videotape, which has now been filed i n this Court as a part of the appellate record, and the trial court found that appellant’s attorney had viewed the video tape before filing his appellate brief.4 Based on the supplemented appellate record, w e determine that the appeal is wholly frivolous an d conclude that no reversible error exists. We grant appellant’s appointed counsel’s motion to withdraw. Appointed counsel still has a duty to (1) send appellant a copy of the opinion and judgment, (2) notify appellant of any upcoming appellate deadlines not previously disclosed (e.g., to file a pro se motion for rehearing or petition for discretionary review), (3) inform appellant that he may, on his own, file a pro se petition for discretionary review in the Court of Criminal Appeals under Texas Rule of Appellate Procedure 68, and (4) file with the Clerk of this Court within five days from the date of this opinion the documents required by Texas Rules of Appellate Procedure 6.5(c) and 48.4. See Bledsoe , 178 S.W.3d at 827 & n.6; Ex Parte Wilson , 956 S.W.2d 25, 27 (Tex. Crim. App. 1997); Stephens v. State , 35 S.W.3d 770, 771

– 72 (Tex. App.

— Hous ton [1st Dist.] 2000, no pet.).

Jim Sharp Justice Panel consists of Justices Jennings, Sharp, and Brown. Do not publish. T EX
. R. A PP
. P. 47.2( b).