Opinion
NO. 12-11-00166-CR
07-31-2012
MARCUS TYRONE ROSE, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEALS FROM THE 114TH
JUDICIAL DISTRICT COURT
SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Marcus Tyrone Rose appeals his conviction for sexual assault of a child. Appellant's counsel has 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). We affirm.
BACKGROUND
Appellant was indicted for sexual assault of a child in 2009, a second degree felony. Pursuant to an agreement with the State, Appellant executed a "Waiver of Jury Trial," an "Agreement to Stipulate Testimony," and a "Stipulation of Evidence." He also made a plea of "guilty" to the trial court. The trial court placed Appellant on deferred adjudication community supervision for a ten year period.
As permitted by Texas Penal Code Section 12.45, the trial court also considered an unadjudicated offense for sexual performance of a child in the punishment phase of Appellant's trial. That statute permits a defendant, with the prosecutor's consent, to admit guilt of an unadjudicated extraneous offense and to have that offense taken into account by the trial court when assessing a sentence for another offense. TEX. PENAL CODE ANN. § 12.45(a) (West 2011). When this procedure is employed, it acts as a bar to any future prosecution for the extraneous offense. Id. §12.45(c).
In 2011, the State filed an application to adjudicate Appellant's guilt, alleging that Appellant failed to abide by the terms of his community supervision. The State, in its application, alleged that Appellant failed to attend counseling sessions, submit to a sex offender evaluation, and report to his community supervision officer on numerous occasions. Appellant pleaded "true" to the failure to attend counseling sessions allegation, and pleaded "not true" to the remaining allegations. At the hearing on the State's application, Appellant's community supervision officer testified that Appellant failed to report as alleged in the application. The trial court found this allegation to be true. With respect to the remaining allegation that Appellant failed to submit to a sex offender evaluation, the trial court found that allegation to be not true. Accordingly, the trial court adjudicated Appellant's guilt, found him guilty of the charged offense, revoked his community supervision, and sentenced him to seven years of 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.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 considered counsel's brief and have conducted our own independent review of the record. We have found no reversible error. 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.
--------
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 judgment of the trial court. See TEX. R. APP. P. 43.2(b).
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 clerk of 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 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)
NO. 12-11-00166-CR
MARCUS TYRONE ROSE, Appellant
v.
THE STATE OF TEXAS, Appellee
Appeal from the 114th Judicial District Court
of Smith County, Texas. (Tr.Ct.No. 114-0610-10)
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.