No. 12-08-00022-CR
Opinion delivered May 13, 2009. DO NOT PUBLISH.
Appeal from the 241st Judicial District Court of Smith County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
PER CURIAM.
Kevin Wayne Moss appeals his conviction for aggravated assault. Appellant's counsel filed a brief asserting 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). Appellant filed a pro se brief. We dismiss Appellant's appeal.
Background
Appellant was charged by indictment with aggravated assault. The grand jury further alleged that Appellant used a deadly weapon in the assault. Prior to trial, the State gave notice pursuant to Brooks v. State , 957 S.W.2d 30 (Tex.Crim.App. 1997), that it intended to seek a greater punishment based on Appellant's having been twice before convicted of unrelated felony offenses. The jury found Appellant guilty of aggravated assault and found that he used a deadly weapon in the commission of the offense. Appellant pleaded true to the sentencing enhancement, and the jury assessed punishment at life imprisonment. This appeal followed. Analysis Pursuant to Anders v. California
Appellant's counsel has filed a brief in compliance with Anders and Gainous . Counsel states that he has diligently reviewed the appellate record and that he is well acquainted with the facts of this case. In compliance with Anders , Gainous , and High v. State , 573 S.W.2d 807 (Tex.Crim.App. 1978), counsel's brief presents a thorough chronological summary of the procedural history of the case and further states that counsel is unable to present any arguable issues for appeal. Appellant argues in his pro se brief that the trial court erred by not allowing him to explore evidence that, while on the way to the hospital, the victim said he was shot by a person named "D-Lacy" or "D-Love." The victim testified that he knew of a person named "Dee Lacy," and it appears from the record that Dee Lacy and Appellant are not the same person. We have considered the briefing and have conducted our own independent review of the record. See Anders , 386 U.S. at 745, 87 S. Ct. at 1400; see also Penson v. Ohio , 488 U.S. 75, 80, 109 S. Ct. 346, 350, 102 L. Ed. 2d 300 (1988). We have found no reversible error. See Bledsoe v. State , 178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005). 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 dismiss this appeal. See In re Schulman , 252 S.W.3d at 408-09 ("After the completion of these four steps, the court of appeals will either agree that the appeal is wholly frivolous, grant the attorney's motion to withdraw, and dismiss the appeal, or it will determine that there may be plausible grounds for appeal."). 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 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; In re Schulman , 252 S.W.3d at 408 n. 22.