Opinion
NO. 12-12-00187-CR
10-31-2012
FABIAN TAMEZ, JR., APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 217TH
JUDICIAL DISTRICT COURT
ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Fabian Tamez, Jr. appeals his conviction for aggravated assault with a deadly weapon. 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 retaliation, and aggravated assault with a deadly weapon, a second degree felony. Before trial, the trial court dismissed the retaliation charge. Appellant entered a plea of guilty to the offense of aggravated assault with a deadly weapon. 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 he committed each and every element of the offense alleged in the indictment. The trial court accepted Appellant's plea, found that the evidence was sufficient to support a finding of Appellant's guilt, deferred further proceedings without entering an adjudication of guilt, and ordered that Appellant be placed on deferred adjudication community supervision for five years. The trial court also ordered that Appellant pay a fine and court costs.
See TEX. PENAL CODE ANN. § 22.02(a)(2), (b) (West 2011).
See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (West Supp. 2012).
Later, the State filed a motion to adjudicate or revoke Appellant's community supervision, alleging that Appellant had violated the terms of his community supervision. Appellant and his attorney signed a written waiver, consent to stipulation of testimony, and stipulation of evidence in which Appellant admitted that the four paragraphs of allegations in the State's application were true and correct. At the hearing on the revocation, Appellant again pleaded "true" to the allegations in the State's motion. After the hearing, the trial court accepted Appellant's plea, found it "true" that he violated the conditions of his community supervision, and adjudged Appellant guilty of the offense of aggravated assault with a deadly weapon. Further, the trial court assessed Appellant's punishment at twenty years of imprisonment. This appeal followed.
An individual adjudged guilty of a second degree felony shall be punished by imprisonment for any term of not more than twenty years or less than two years and, in addition, a fine not to exceed $10,000. TEX. PENAL CODE ANN. § 12.33 (West 2011).
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. He states further 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. 12-12-00187-CR
FABIAN TAMEZ, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
Appeal from the 217th Judicial District Court
of Angelina County, Texas. (Tr.Ct.No. CR-30046)
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.