Opinion
No. 07-03-0039-CR.
March 12, 2004. DO NOT PUBLISH.
Appeal from the Criminal Judicial District Court of Jefferson County, No. 81899, Honorable Larry Gist, Judge.
Panel C: Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
MEMORANDUM OPINION
Appellant David Solomon Maze appeals the revocation of his probation for possession of a controlled substance (cocaine), at least one gram but less than four grams. We affirm. Appellant, while represented by counsel and in open court, pled guilty to the possession charge. The plea was an open plea in that there was no agreed recommendation of punishment for the trial court. Appellant was given written admonishments, stipulations, waivers and a judicial admission which he signed. Appellant confirmed that he understood the written admonishments that he had signed and that his plea was being made knowingly and voluntarily. The trial court accepted appellant's guilty plea and sentenced him to ten years incarceration in the Texas Department of Criminal Justice, Institutional Division, but suspended the term for ten years. Additionally, the trial court ordered a fine of $1,000. Approximately two years later, appellant again appeared before the trial court on a motion to revoke his probation. Appellant pled "true" to five violations of the terms of his community supervision, including evading detention and failing to identify himself to a peace officer. The trial court granted the State's motion and, on December 9, 2002, sentenced appellant to ten years incarceration in the Texas Department of Criminal Justice, Institutional Division. Counsel for appellant has filed a Motion to Withdraw as Counsel and a Brief in Support thereof. In support of the motion to withdraw, counsel has certified that, in compliance with Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the record has been diligently reviewed and, in the opinion of counsel, the record reflects no reversible error or grounds upon which a non-frivolous appeal can arguably be predicated. Counsel thus concludes that the appeal is frivolous. Counsel has discussed why, under the controlling authorities, there are no arguably reversible errors in the trial court proceeding or judgment. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978). Counsel has certified that a copy of the Anders brief and Motion to Withdraw as Counsel have been served on appellant, and that counsel has appropriately advised appellant of his right to review the record and file a pro se response. Appellant did not file a pro se response. We have made an independent examination of the record to determine whether there are any non-frivolous grounds on which an appeal could arguably be founded. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). The trial court sentenced appellant to ten years incarceration, a penalty within the range of punishment established by the legislature.See Gonzales v. State, 386 S.W.2d 139, 140 (Tex.Crim.App. 1965); Nunez v. State, 565 S.W.2d 536, 538 (Tex.Crim.App. 1978) (en banc). After a through review of the record, we agree with appellate counsel that the appeal is frivolous. Accordingly, we grant appellate counsel's Motion to Withdraw and affirm the judgment of the trial court.