Opinion
NO. 12-18-00268-CR
05-15-2019
JAMES BROWN, JR., APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 7TH JUDICIAL DISTRICT COURT SMITH COUNTY, TEXASMEMORANDUM OPINION
James Brown, Jr. appeals his conviction for theft. Appellant's counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm.
BACKGROUND
Appellant was charged by indictment with third degree felony theft of property. The indictment further alleged two sequential felony convictions as enhancements, elevating the punishment range to twenty five years to ninety nine years or life imprisonment. Appellant elected to plead "guilty" to the indictment and "true" to the enhancement allegations, and have the trial court assess his punishment. At a sentencing hearing, the trial court found Appellant "guilty" of the offense, found the enhancements to be "true," and sentenced Appellant to thirty five years of imprisonment. This appeal followed.
The indictment alleged an elderly individual as the owner of the stolen property, and that Appellant had two previous convictions for theft, making the primary offense a third degree felony. See TEX. PENAL CODE ANN. § 31.03 (a); (e)(4)(D); (f)(3)(A) (West 2019).
See TEX. PENAL CODE ANN. § 12.42(d) (West 2019).
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant's counsel filed a brief in compliance with Anders v. California and Gainous v. State. Appellant's counsel relates that he diligently reviewed and evaluated the appellate record and found no error for our review. In compliance with High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978), counsel's brief contains a thorough professional evaluation of the record demonstrating why there are no arguable grounds to be advanced.
In compliance with Kelly v. State, Appellant's counsel provided Appellant with a copy of the brief, notified Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took concrete measures to facilitate Appellant's review of the appellate record. 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). Appellant was given time to file his own brief. The time for filing such a brief has expired and no pro se brief has been filed.
We have considered counsel's brief and conducted our own independent review of the record. Id. at 811. We have found no reversible error.
CONCLUSION
As required by Anders and Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991), Appellant's counsel moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the merits. Having done so, we agree with Appellant's counsel that the appeal is wholly frivolous. Accordingly, we grant counsel's motion for leave to withdraw. We affirm the trial court's judgment.
Appellant's counsel has a duty to, within five days of the date of this opinion, send a copy of the opinion and judgment to Appellant and advise him of his right to file a petition for discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. Should Appellant wish to seek review of these cases by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review on his behalf or he 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 date that the last timely motion for rehearing was overruled by this Court. See TEX. R. APP. P. 68.2(a). Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See In re Schulman, 252 S.W.3d at 408 n.22. Opinion delivered May 15, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
Appeal from the 7th District Court of Smith County, Texas (Tr.Ct.No. 007-0600-18)
THIS CAUSE came to be heard on the appellate record and brief filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J
THE STATE OF TEXAS MANDATE
TO THE 7TH DISTRICT COURT OF SMITH COUNTY, GREETING:
Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 6th day of May, 2019, the cause upon appeal to revise or reverse your judgment between
JAMES BROWN, JR., Appellant
NO. 12-18-00268-CR; Trial Court No. 007-0600-18
By per curiam opinion.
THE STATE OF TEXAS, Appellee
was determined; and therein our said Court made its order in these words:
"Text goes here."
WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly recognized, obeyed, and executed.
WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of Tyler, this the xx day of May, 2019.
KATRINA MCCLENNY, CLERK
By: /s/_________
Chief Deputy Clerk