Opinion
NO. 12-17-00316-CR
08-31-2018
ROBERT EARL HILL, JR., APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 241ST JUDICIAL DISTRICT COURT SMITH COUNTY , TEXAS MEMORANDUM OPINION
Robert Earl Hill, Jr. appeals his conviction for possession of a controlled substance. 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 possession of a controlled substance, a state jail felony. The indictment alleged that Appellant had two prior sequential felony convictions, enhancing the punishment range to not less than two but not more than twenty years imprisonment. Appellant pleaded "not guilty" and the case proceeded to a jury trial. The jury found Appellant guilty of possession of a controlled substance. Appellant elected to have the trial court decide punishment. After a separate punishment hearing, the trial court found the enhancement allegations "true" and sentenced Appellant to imprisonment for twenty years. This appeal followed.
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.
Appellant's counsel notes in his brief that the trial court's written judgment erroneously states that Appellant pleaded "true" to both enhancement paragraphs. Appellant's counsel relates that these errors have been brought to the trial court's attention for correction by a motion for nunc pro tunc.
CONCLUSION
As required by Anders and Stafford v. State , 813 S.W.2d 503, 511 (Tex. Crim. App. 1991), Appellant's counsel has 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 this court's judgment or the date 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 August 31, 2018.
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 241st District Court of Smith County, Texas (Tr.Ct.No. 241-1707-16)
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.