Ronald Lamar Smith, Appellant v. The State of Texas, Appellee

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Court of Appeals of Texas, Waco.

Ronald Lamar Smith, Appellant v. The State of Texas, Appellee

No. 10–11–00287–CR

Decided: January 25, 2012

Before Chief Justice Gray, Justice Davis, and Justice Scoggins

MEMORANDUM Opinion

Appellant, Ronald Lamar Smith, was charged by indictment with the offense of family-violence assault, a third-degree felony.   See Tex. Penal Code Ann. § 22.01(a)(1), (b)(2) (West 2011);  see also Tex. Fam.Code Ann. § 71.003 (West 2008).   The indictment also included enhancement paragraphs pertaining to appellant's prior convictions for family-violence assault and unlawful possession of cocaine.   Appellant pleaded “not guilty” to the charged offense, and a bench trial commenced.   At the conclusion of the evidence, the trial court found appellant guilty of the charged offense, concluded that he had been previously convicted for family-violence assault, and sentenced him to fifteen years' incarceration in the Institutional Division of the Texas Department of Criminal Justice.1

The trial court subsequently signed appellant's certification of the right to appeal on August 31, 2010;  however, the certification was ambiguous because the trial court indicated that:  (1) this case “is not a plea-bargain case, and the defendant has the right of appeal”;  and (2) “the defendant has waived the right to appeal.”   As a result, appellant's trial counsel did not file a notice of appeal.

In October 2010, appellant requested that the trial court appoint him an attorney to file an appeal in this case.   The trial court granted appellant's request and appointed him appellate counsel;  however, because the time to file a notice of appeal in this case had expired, appellant's appellate counsel petitioned the Texas Court of Criminal Appeals for an out-of-time appeal.   On July 15, 2011, the court of criminal appeals granted appellant's request for an out-of-time appeal, and this appeal followed.   See Ex parte Smith, No. AP–76,579, 2011 Tex.Crim.App. Unpub.   LEXIS 435, at * *1–2 (Tex.Crim.App. June 15, 2011) (per curiam) (not designated for publication).   We affirm.

I.  Anders Brief

Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), appellant's court-appointed appellate counsel filed a brief and a motion to withdraw with this Court, stating that his review of the record yielded no grounds of error upon which an appeal can be predicated.   Counsel's brief meets the requirements of Anders as it presents a professional evaluation demonstrating why there are no arguable grounds to advance on appeal.   See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex.Crim.App.2008) (“In Texas, an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities.”) (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex.App.—Corpus Christi 2003, no pet.));  Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex.Crim.App.1991) (en banc).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. [Panel Op.] 1978), appellant's counsel has carefully discussed why, under controlling authority, there are no reversible errors in the trial court's judgment.   Counsel has informed this Court that he has:  (1) examined the record and found no arguable grounds to advance on appeal;  (2) served a copy of the brief and counsel's motion to withdraw on appellant;  and (3) informed appellant of his right to review the record and to file a pro se response.2  See Anders, 386 U.S. at 744, 87 S.Ct. at 1400;  Stafford, 813 S.W.2d at 510 n.3;  see also In re Schulman, 252 S.W.3d at 409 n.23. On December 28, 2011, appellant filed a pro se response to counsel's Anders brief.3  See In re Schulman, 252 S.W.3d at 409.

II. Independent Review

Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous.  Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 349–50, 102 L.Ed.2d 300 (1988).   We have reviewed the entire record, counsel's brief, and appellant's pro se response and have found nothing that would arguably support an appeal.   See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex.Crim.App.2005) (“Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1.”);  Stafford, 813 S.W.2d at 509.   Accordingly, the judgment of the trial court is affirmed.

III. Motion to Withdraw

In accordance with Anders, appellant's attorney has asked this Court for permission to withdraw as counsel for appellant.   See Anders, 386 U.S. at 744, 87 S.Ct. at 1400;  see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80 (Tex.App.—Dallas 1995, no pet.)  (“If an attorney believes the appeal is frivolous, he must withdraw from representing the appellant.   To withdraw from representation, the appointed attorney must file a motion to withdraw accompanied by a brief showing the appellate court that the appeal is frivolous.”) (citations omitted)).   We grant counsel's motion to withdraw.   Within five days of the date of this Court's opinion, counsel is ordered to send a copy of this opinion and this Court's judgment to appellant and to advise him of his right to file a petition for discretionary review.4  See Tex.R.App. P. 48.4;  see also In re Schulman, 252 S.W.3d at 412 n.35;  Ex parte Owens, 206 S.W.3d 670, 673 (Tex.Crim.App.2006).

[CR25]

FOOTNOTES

FN1. Because the trial court concluded that appellant had previously been convicted of felony family-violence assault, the punishment range associated with the charged offense was enhanced from a third-degree felony to a second-degree felony, which carried a sentencing range of two to twenty years in prison.   See Tex. Penal Code Ann. §§ 12.33(a), 12.42(a)(3) (West 2011)..  FN1. Because the trial court concluded that appellant had previously been convicted of felony family-violence assault, the punishment range associated with the charged offense was enhanced from a third-degree felony to a second-degree felony, which carried a sentencing range of two to twenty years in prison.   See Tex. Penal Code Ann. §§ 12.33(a), 12.42(a)(3) (West 2011).

FN2. The Texas Court of Criminal Appeals has held that “ ‘the pro se response need not comply with the rules of appellate procedure in order to be considered.   Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues.’ ”  In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex.Crim.App.2008) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex.App.—Waco 1997, no pet.))..  FN2. The Texas Court of Criminal Appeals has held that “ ‘the pro se response need not comply with the rules of appellate procedure in order to be considered.   Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues.’ ”  In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex.Crim.App.2008) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex.App.—Waco 1997, no pet.)).

FN3. Among the many arguments made in appellant's pro se response is a contention that the record erroneously reflects that he pleaded “true” to the enhancement paragraphs contained in the indictment.   Though the record does not specifically indicate that appellant pleaded “true” to the enhancement paragraph pertaining to his prior felony conviction for family-violence assault, appellant signed a stipulation admitting that he had been convicted previously of family-violence assault on February 26, 2009, which corresponded to one of the enhancement paragraphs contained in the indictment.   We believe that this stipulation ostensibly constitutes a plea of “true” to this particular enhancement paragraph;  therefore, we do not find appellant's contention regarding this issue to be meritorious..  FN3. Among the many arguments made in appellant's pro se response is a contention that the record erroneously reflects that he pleaded “true” to the enhancement paragraphs contained in the indictment.   Though the record does not specifically indicate that appellant pleaded “true” to the enhancement paragraph pertaining to his prior felony conviction for family-violence assault, appellant signed a stipulation admitting that he had been convicted previously of family-violence assault on February 26, 2009, which corresponded to one of the enhancement paragraphs contained in the indictment.   We believe that this stipulation ostensibly constitutes a plea of “true” to this particular enhancement paragraph;  therefore, we do not find appellant's contention regarding this issue to be meritorious.

FN4. No substitute counsel will be appointed.   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 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 opinion or the last timely motion for rehearing or timely motion for en banc reconsideration was overruled by this Court.   See Tex.R.App. P. 68.2. Any petition and all copies of the petition for discretionary review must be filed with the Clerk of the Court of Criminal Appeals.   See id. at R. 68.3.   Any petition for discretionary review should comply with the requirements of rule 68.4 of the Texas Rules of Appellate Procedure.   See id. at R. 68.4;  see also In re Schulman, 252 S.W.3d at 409 n.22..  FN4. No substitute counsel will be appointed.   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 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 opinion or the last timely motion for rehearing or timely motion for en banc reconsideration was overruled by this Court.   See Tex.R.App. P. 68.2. Any petition and all copies of the petition for discretionary review must be filed with the Clerk of the Court of Criminal Appeals.   See id. at R. 68.3.   Any petition for discretionary review should comply with the requirements of rule 68.4 of the Texas Rules of Appellate Procedure.   See id. at R. 68.4;  see also In re Schulman, 252 S.W.3d at 409 n.22.

AL SCOGGINS Justice

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