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Barrett v. State

Court of Appeals of Texas, Thirteenth District, Corpus Christi
Aug 12, 2004
No. 13-03-389-CR (Tex. App. Aug. 12, 2004)

Opinion

No. 13-03-389-CR

Memorandum Opinion delivered and filed August 12, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On appeal from the 23rd District Court of Brazoria County, Texas.

Before Justices YAÑEZ, RODRIGUEZ, and GARZA.


MEMORANDUM OPINION


Appellant, Demond Barrett, was charged with assault on a public servant. See TEX. PEN. CODE ANN. § 22.01(b)(1) (Vernon Supp. 2004). Appellant pled guilty to the charge and true to a prior offense used for enhancement of the sentence and waived his right to a jury trial. The trial judge assessed punishment at five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. We affirm. Appellant's counsel has filed a brief and motion to withdraw in which she concludes that appellant has no non-frivolous grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel certifies that she diligently reviewed the complete record and researched the law applicable to the facts and issues contained therein, and she concludes that she was unable to find any error which would arguably require a reversal of the trial court's sentence. See id.; see also High v. State, 573 S.W.2d 807, 812-13 (Tex.Crim.App. 1978). Counsel has served a copy of this brief on appellant, accompanied by a copy of the record and a letter informing appellant of his right to file a pro se brief on his own behalf. See Anders, 386 U.S. at 744; see also Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991). More than thirty days have passed and no pro se brief has been filed. See TEX. R. APP. P. 38.6. An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced. High, 573 S.W.2d at 812. Although counsel's brief does not advance any arguable grounds of error, it does present a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See Currie v. State, 516 S.W.2d 684, 684 (Tex.Crim.App. 1974); High, 573 S.W.2d at 812. We conclude counsel's brief meets the requirements of Anders. See Anders, 386 U.S. at 744; High, 573 S.W.2d at 812. Upon receiving a "frivolous appeal" brief, appellate courts must conduct a full examination of all the proceedings to decide whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). Accordingly, we independently review the record for error. The record shows that appellant voluntarily pled guilty to the offense alleged in the indictment and waived his right to a jury trial. The judge properly administered all required admonishments. See TEX. CODE CRIM. PROC. ANN. art 26.13 (Vernon Supp. 2004). Appellant did not object to the sentence on any basis, and therefore waived his ability to challenge on appeal any error in the punishment phase. See TEX. R. APP. P. 33.1; Wilson v. State. 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). There is no evidence in the record of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 684 (1984). Appellant's sentence of five years' imprisonment was within the legal range of punishment. Accordingly, after careful review of the record, we agree with counsel that the appeal is wholly frivolous. The judgment of the trial court is affirmed. In accordance with Anders, appellant's attorney has asked permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744. We grant her motion to withdraw. We further order counsel to notify appellant of the disposition of this appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App. 1997) (per curiam).


Summaries of

Barrett v. State

Court of Appeals of Texas, Thirteenth District, Corpus Christi
Aug 12, 2004
No. 13-03-389-CR (Tex. App. Aug. 12, 2004)
Case details for

Barrett v. State

Case Details

Full title:DEMOND BARRETT, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Thirteenth District, Corpus Christi

Date published: Aug 12, 2004

Citations

No. 13-03-389-CR (Tex. App. Aug. 12, 2004)