Opinion
No. 06-10-00047-CR
Date Submitted: February 1, 2011.
Date Decided: February 2, 2011. DO NOT PUBLISH
On Appeal from the 71st Judicial District Court, Harrison County, Texas, Trial Court No. 09-0291X.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
MEMORANDUM OPINION
Christopher E. Jacobs appeals his conviction on multiple counts on his open plea of guilty to each count. He was sentenced to two life terms for two counts of aggravated sexual assault, twenty years each on two counts of sexual performance by a child, and ten years for possession of child pornography. Jacobs' attorney on appeal has filed a brief which discusses the record and reviews the proceedings in detail, combined with a discussion of one issue that counsel nonetheless believes may be arguable, although without merit-constitutionally disproportionate sentencing. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1981); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978). Counsel mailed a copy of the brief to Jacobs on July 15, 2010, informing Jacobs of his right to file a pro se response and of his right to review the record. Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal. Jacobs has filed and been granted four extensions of time in which to file his response. The last extension expired on Wednesday, December 22, 2010, and our order granting that extension stated that no more extensions would be granted. Twenty days after that date, we sent a letter to Jacobs informing that the case had been set for submission on February 1, 2011. As of this date, we have received no further communication from Jacobs. We have determined that this appeal is wholly frivolous. The possible issue proposed by counsel was not preserved for review, see Williamson v. State, 175 S.W.3d 522, 523-24 (Tex. App.-Texarkana 2005, no pet.), and even had it been, there is nothing to support an argument that the punishments assessed (within the statutory ranges) is constitutionally grossly disproportionate to the gravity of the offenses. Id.; see Latham v. State, 20 S.W.3d 63, 69 (Tex. App.-Texarkana 2000, pet. ref'd). We have independently reviewed the clerk's record and the reporter's record, and we agree that no arguable issues support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). In a frivolous appeal situation, we are to determine whether the appeal is without merit and is frivolous, and if so, the appeal must be dismissed or affirmed. See Anders, 386 U.S. 738. We affirm the judgment of the trial court.
Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel's request to withdraw from further representation of Jacobs in this case. No substitute counsel will be appointed. Should Jacobs wish to seek further review of this case by the Texas Court of Criminal Appeals, Jacobs must either retain an attorney to file a petition for discretionary review or Jacobs 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 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 this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case. 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.