¶1dissenting.
¶2I respectfully dissent from the majority opinion.
¶3In perusing the record to determine whether any basis for appeal exists, the *574majority is essentially conducting an An-ders review sua sponte. I know of no authority permitting that. Nor does either the majority or the State provide any. Indeed, the court has not even informed the appellant of its intent to invoke Anders in a situation wherein he has not been granted counsel, counsel has not opined that the appeal is frivolous, and appellant has not been accorded the opportunity to review the record and proffer argument illustrating potentially viable issues for appellate review. Providing an indigent appellant with such opportunity is inherent in the Anders process. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Johnson v. State, 885 S.W.2d 641, 646 (Tex.App.-Waco 1994, order) (order discussing procedures for An-ders appeal). Moreover, questions of due process and its denial immediately arise upon the adoption of a procedure that permits dismissal of the appeal on the merits without according the appellant a chance to review the record and comment upon potential trial court error before the appeal is resolved.
¶4Nor do I feel that I can safely assume that the State will protect or preserve the interest of the appellant when it opines that the appeal is frivolous and, thereby, triggers implementation of this hybrid An-ders procedure. In an Anderssituation, authority does obligate the reviewing court to conduct an independent analysis of the record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991) (discussing the traditional Andersprocedure). However, by the time we do that, counsel for the appellant, who has the task of zealously representing the interests of his client, has already conducted his own investigation and opined about the existence of potential error. Here, the majority is simply excising the element of a zealous advocate from the equation established by the United States Supreme Court in Anders, again without citing any authority for doing so. And, while the office of the prosecutor has counsel learned in criminal law and procedure, one can reasonably suspect that few if any would be predisposed to parsing through the record with any eye favorable to the individual whom they just convicted and in search of error that would ultimately negate that conviction. So, it is unlikely that the recommendations of a prosecutor would provide an adequate substitute for those of independent counsel appointed to represent the appellant.
¶5In close, I recognize the need to address and dispose of frivolous appeals in an efficient manner. To this end, a procedure much like that used to assess the merits of a civil suit initiated by an indigent prisoner may have some benefit. See Tex. Civ. PRAC. & Rem.Code Ann. § 14.001 (Vernon 2002). But, that procedure is a creature of statute enacted by the legislature, as is the right to appeal itself. Tex.Code CRim. PROC. Ann. art. 44.02 (Vernon 1979); Ex parte Spring, 586 S.W.2d 482, 485-86 (Tex.Crim.App.1978) (stating that the right to appeal in a criminal case is statutory). Moreover, statute directs that rules or operating procedures applicable to the review of criminal cases cannot “abridge, enlarge, or modify the substantive rights of a litigant.” Tex. Gov.Code Ann. § 22.108(a) (Vernon 2004). Thus, it lies within the jurisdiction of the legislature, not this court, to enact a procedure like that alluded to above. We cannot legislate for that body. And, until it acts, I stay my own hand from curtailing the legislatively created right of appellant to appeal through the means now promulgated by the majority.
¶6I respectfully dissent and invite the Court of Criminal Appeals to address the matter.