Opinion
NO. 12-11-00202-CR
07-31-2012
TOMMIE DAVIS, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEALS FROM THE 114TH JUDICIAL DISTRICT COURT SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Tommie Davis appeals his conviction for possession of a controlled substance, namely cocaine, in an amount of less than one gram. 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 the offense of possession of a controlled substance, namely cocaine, in an amount of less than one gram, a state jail felony, and entered a plea of guilty to that offense. Appellant and his counsel signed various documents in connection with his guilty plea, including a stipulation of evidence in which Appellant swore, and judicially confessed, that all allegations pleaded in the indictment were true and correct. The trial court accepted Appellant's plea, found that the evidence substantiated Appellant's guilt, deferred further proceedings without entering an adjudication of guilt, and ordered that Appellant be placed on deferred adjudication community supervision for three years. The trial court also ordered that Appellant pay court costs.
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (West 2010).
See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (West Supp. 2011).
Later, the State filed a first amended application to proceed to final adjudication, alleging that Appellant had violated the terms of his community supervision. Appellant and his attorney signed a written plea admonishment and stipulation of evidence, admitting as "true" seven paragraphs of the allegations in the State's application. At the hearing on the application, Appellant pleaded "true" to those paragraphs. However, he pleaded "not true" to allegations in paragraph eight. After a hearing, the trial court found it "true" that Appellant violated the conditions of his community supervision, specifically finding the allegations in paragraphs I through VII of the State's application to be "true," granted the State's application, revoked Appellant's community supervision, and adjudged Appellant guilty as charged as alleged in the indictment. The trial court assessed Appellant's punishment at fifteen months of confinement in a state jail facility and court costs. This appeal followed.
An individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days and, in addition, a fine not to exceed $10,000. TEX. PENAL CODE ANN. § 12.35(a), (b) (West Supp. 2012).
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant's counsel filed a brief in compliance with Anders and Gainous, stating that he has diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error and that there is no error upon which an appeal can be predicated. From our review of Appellant's brief, it is apparent that his counsel is well acquainted with the facts in this case. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978), counsel's brief presents a chronological summation of the procedural history of the case, and further states that counsel is unable to raise any arguable issues for appeal. We have reviewed the record for reversible error and have found none.See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
Counsel for Appellant certified that he provided Appellant with a copy of his brief and informed Appellant that he had the right to file his own brief. Appellant was given time to file his own brief, but the time for filing such a brief has expired and we have received no pro se brief.
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CONCLUSION
As required, Appellant's counsel has moved for leave to withdraw. See In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We are in agreement with Appellant's counsel that the appeal is wholly frivolous. Accordingly, his motion for leave to withdraw is hereby granted, and we affirm the trial court's judgment. See TEX. R. APP. P. 43.2.
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 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 he must file a pro se petition for discretionary review. See In re Schulman, 252 S.W.3d at 408 n.22. 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 was overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4; In re Schulman, 252 S.W.3d at 408 n.22. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
JUDGMENT
NO. 12-11-00202-CR
TOMMIE DAVIS, Appellant
V.
THE STATE OF TEXAS, Appellee
Appeal from the 114th Judicial District Court
of Smith County, Texas. (Tr.Ct.No. 114-1682-08)
THIS CAUSE came to be heard on the appellate record and briefs 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 Appellant's counsel's motion to withdraw is granted, 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., Griffith, J., and Hoyle, J.