MEMORANDUM OPINION

No. 04-11-00460-CR

Trey O’BRIEN,

Appellant

v.

The STATE of Texas,

Appellee

From the 186th Judicial District Court, Bexar County, Texas

Trial Court No. 2009CR7358

Honorable Maria Teresa Herr, Judge Presiding

Opinion by: Catherine Stone, Chief Justice

Sitting: Catherine Stone, Chief Justice

Sandee Bryan Marion, Justice

Steven C. Hilbig, Justice

Delivered and Filed: February 15, 2012

AFFIRMED

Trey O’Brien entered an open plea of no contest to burglary of a habitation with intent to 

commit aggravated assault and aggravated assault with a deadly weapon. The trial court 

assessed sentences of twelve years in prison and a $2,000 fine for each offense, with the 

sentences running concurrently. O’Brien’s court-appointed attorney filed a brief containing a 

professional evaluation of the record in accordance with Anders v. California, 386 U.S. 738 

(1967). Counsel concludes that the appeal has no merit. Counsel provided O’Brien with a copy 
04-11-00460-CR

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of the brief and informed him of his right to review the record and file his own brief. See 

Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.—San Antonio 1997, no pet.); Bruns v. State, 

924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.). O’Brien filed a pro se brief 

asserting ineffective assistance of counsel.

After reviewing the record, counsel’s brief, and O’Brien’s pro se brief, we conclude that 

the appeal is frivolous and without merit. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.

Crim. App. 2005).

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 The judgment of the trial court is affirmed. Appellate counsel’s request to 

withdraw is granted. Nichols, 954 S.W.2d at 86; Bruns, 924 S.W.2d at 177 n.1. No substitute 

counsel will be appointed. Should O’Brien wish to seek further review of this case by the Texas 

Court of Criminal Appeals, O’Brien must either retain an attorney to file a petition for 

discretionary review or O’Brien must file a pro se petition for discretionary review. Any petition 

for discretionary review must be filed within thirty days from the later of: (1) the date of this 

opinion; or (2) the date the last timely motion for rehearing is overruled by this court. See TEX.

R. APP. P. 68.2. Any petition for discretionary review must be filed in the Texas Court of 

Criminal Appeals. 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. 

Catherine Stone, Chief Justice

DO NOT PUBLISH

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If an Anders brief is filed in an appeal and the appellant elects to file a pro se brief, the Texas Court of Criminal 

Appeal has instructed that this court has two choices. Bledsoe, 178 S.W.2d at 826-27. We may “determine that the 

appeal is wholly frivolous and issue an opinion explaining that [the court] has reviewed the record and finds no 

reversible error.” Id. “Or, [we] may determine that arguable grounds for appeal exist and remand the cause to the 

trial court so that new counsel may be appointed to brief the issues.” Id. at 827. “Only after the issues have been 

briefed by new counsel may [this court] address the merits of the issues raised.” Id. If we “were to review the case 

and issue an opinion which addressed and rejected the merits raised in a pro se response to an Anders brief, then 

[the] [a]ppellant would be deprived of the meaningful assistance of counsel.” Id.