v.
the State of Texas
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
MEMORANDUM OPINION
Appellant, Carlos McCain, appeals his conviction of sexual assault of a child and asks this Court to reverse and remand the case for a new trial. [1] See TEX.PENAL CODE ANN. §§ 22.011, 12.42(c)(2)(defining enhanced punishments for prior sexual assault convictions). Counsel for Appellant filed a brief in compliance with Anders v. California, 386 U.S. 738, 744 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). Appellant timely filed a notice of appeal. Appellant also filed a pro se brief, contending that the State varied the indictment rendering it impermissible, denied Appellant his right to confrontation of witnesses, denied him an impartial jury, and that he suffered ineffective assistance of counsel. The State, thereafter, filed a response brief addressing Appellant’s pro se appeal. We affirm.
need not address the merits of issues raised in Anders briefs or pro se responses. Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005). Rather, an appellate court may determine either: (1) “that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error[;]” or (2) “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 826-
INDEPENDENT REVIEW
We have determined that this appeal is wholly frivolous. After carefully reviewing the record, counsel’s brief, Appellant’s pro se brief, and the State’s response, we agree with counsel’s conclusion that no arguable issues support the appeal. See Schulman, 252 S.W.3d at 409 (a reviewing court must conduct its own independent examination of the record when counsel files an Anders brief to ascertain arguable grounds for an appeal). Therefore, we find it unnecessary to order appointment of new counsel to re-brief the appeal. Cf. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991).
MOTION TO WITHDRAW
Finding Appellant’s counsel has substantially complied with the requirements of Anders and Kelly, we grant counsel’s motion to withdraw. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 318–20. However, we note counsel’s motion to withdraw fails to mention whether he informed McCain of his right to seek discretionary review in the Texas Court of Criminal Appeals if this Court finds that the appeal is frivolous. See Kelly, 436 S.W.3d at 318–20; Ex Parte Owens, 206 S.W.3d 670, 674 n.28 (Tex.Crim.App. 2006); Meza v. State, 206 S.W.3d 684, 689 n.23 (Tex.Crim.App. 2006).
Therefore, within five days of the date of this Court’s opinion, counsel is ordered to send a copy of this opinion and this Court’s judgment to McCain and to advise him of his right to file a petition for discretionary review. See TEX.R.APP.P. 48.4; see also In re Schulman, 252 S.W.3d at 411 n.35; Owens, 206 S.W.3d at 673.
No substitute counsel will be appointed. Should McCain wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or 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 is overruled by this Court. See TEX.R.APP.P. 68.2. Any petition for discretionary review must be filed in the Court of Criminal Appeals. See TEX.R.APP.P. 68.3. Any petition for discretionary review must comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX.R.APP.P. 68.4.
CONCLUSION
We affirm the trial court’s judgment.