TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00066-CR

Alvie Eugene Bingham, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT

NO. B-05-1358-S, HONORABLE JAY K. WEATHERBY, JUDGE PRESIDING

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

Appellant Alvie Eugene Bingham was convicted of second-degree driving while

intoxicated, enhanced with one prior felony conviction. See Tex. Penal Code Ann. § 49.04

(West 2003). Appellant’s appointed attorney has filed a brief concluding that the appeal is frivolous

and without merit. Counsel’s brief meets the requirements of Anders v. California, 386 U.S. 738,

743-44 (1967), by presenting a professional evaluation of the record and demonstrating that there

are no arguable grounds to be advanced. See Penson v. Ohio, 488 U.S. 75, 80 (1988); Anders,

386 U.S. at 743-44; High v. State, 573 S.W.2d 807, 811-13 (Tex. Crim. App. 1978); Currie v. State,

516 S.W.2d 684, 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim.

App. 1969). Appellant has filed a pro se brief arguing that the evidence is insufficient to support his

conviction and that he received ineffective assistance of counsel. We affirm the conviction.

We have considered the record, counsel’s brief, and appellant’s pro se brief and we

agree with counsel that the appeal is frivolous and without merit. See Bledsoe v. State, 178 S.W.3d
 The court of criminal appeals in Bledsoe v. State held: 1

When faced with an Anders brief and if a later pro se brief is filed, the court of

appeals has two choices. It may determine that the appeal is wholly frivolous and

issue an opinion explaining that it has reviewed the record and finds no reversible

error. Or, it 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. Only

after the issues have been briefed by new counsel may the court of appeals address

the merits of the issues raised. 

178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (citations omitted).

 No substitute counsel will be appointed. Should appellant wish to seek further review of 2

his case by the court of criminal appeals, he must either retain an attorney to file a petition for

discretionary review or file a pro se petition for discretionary review. See generally Tex. R. App.

P. 68-79 (governing proceedings in the Texas Court of Criminal Appeals). Any petition for

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

this Court overrules the last timely motion for rehearing filed. See Tex. R. App. P. 68.2. The

petition must be filed with this Court, after which it will be forwarded to the court of criminal

appeals along with the rest of the filings in the cause. See Tex. R. App. P. 68.3, 68.7. Any petition

for discretionary review should comply with rules 68.4 and 68.5 of the rules of appellate procedure.

See Tex. R. App. P. 68.4, 68.5. 

2

824, 826-27 (Tex. Crim. App. 2005). We have reviewed the evidence presented to the jury and the 1

procedures that were observed and find nothing in the record that might arguably support the appeal.

We affirm the trial court’s judgment of conviction and grant counsel’s motion to withdraw.2

___________________________________________

David Puryear, Justice

Before Justices Patterson, Puryear and Henson

Affirmed

Filed: September 18, 2008

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