James Christopher Fetzer v. State ( 2015 )

NOS. 12-14-00234-CR
12-14-00235-CR
12-14-00236-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JAMES CHRISTOPHER FETZER, § APPEALS FROM THE 217TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
James Christopher Fetzer appeals his convictions for aggravated assault with a deadly
weapon, possession of a controlled substance, and assault family violence by strangulation.
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). We modify and affirm as modified.
BACKGROUND
An Angelina County grand jury returned two indictments against Appellant for the
offenses of aggravated assault with a deadly weapon (appellate cause number 12-14-00234-CR)
and assault family violence by strangulation (appellate cause number 12-14-00236-CR).
Appellant was later charged by information with the offense of possession of a controlled
substance, namely, methamphetamine, in an amount greater than one gram but less than four
grams (appellate cause number 12-14-00235-CR). Appellant pleaded guilty to each of the
offenses and “true” to the enhancement paragraph alleged in the assault cases.
After a presentence investigation was completed, the trial court conducted a hearing on
punishment. The trial court found Appellant “guilty” of each offense, and found the
enhancement paragraph in the assault cases “true.” In cause number 12-14-00234-CR, the trial
court sentenced Appellant to twenty years of imprisonment. In each of the remaining cause
numbers, the trial court sentenced Appellant to ten years of imprisonment. The sentences were
ordered to run concurrently.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant’s counsel has filed a brief in compliance with Anders and Gainous. Counsel
states that he has reviewed the appellate record and that he is unable to find any reversible error
or jurisdictional defects. 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 why counsel is unable to present any arguable
issues for appeal.1 See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Gainous, 436 S.W.2d at 138;
see also Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 350, 102 L. Ed. 2d 300 (1988). 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).
We note, however, that the trial court’s “corrected” judgment in cause number 12-14-
00234-CR incorrectly reflects a plea of “true” to the second enhancement paragraph when there
was no second enhancement paragraph alleged. The corrected judgment also reflects “N/A” as
the finding on the first enhancement paragraph. We have authority to modify a judgment to
speak the truth when we have the necessary information before us to do so. See TEX. R. APP. P.
43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813
S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d). Appellant pleaded “true” to the first
enhancement paragraph. Likewise, the trial court found the first enhancement paragraph to be
“true.” Therefore, the trial court’s judgment should be modified to reflect that the trial court
found the first enhancement paragraph to be “true” and that Appellant’s plea to the second
enhancement paragraph is “N/A.”
1
Counsel states in his motion to withdraw that he provided Appellant with a copy of his brief. Appellant
was given time to file his own brief in this cause. The time for filing such brief has expired, and we have received
no pro se brief.
2
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) (en banc). We agree with Appellant’s counsel that the appeal
is wholly frivolous. Accordingly, his motion for leave to withdraw is granted in each case. We
affirm the trial court’s judgment in cause numbers 12-14-00235-CR and 12-14-00236-CR. We
modify the trial court’s judgment in cause number 12-14-00234-CR to reflect that the trial court
found the first enhancement paragraph “true,” and Appellant’s plea to the second enhancement
paragraph is “N/A.” We affirm the judgment as modified. See TEX. R. APP. P. 43.2(b); Bray v.
State, 179 S.W.3d 725, 726 (Tex. App.—Fort Worth 2005, no pet.) (en banc) (holding that
appellate court has authority to reform judgment in Anders appeal and affirm judgment as
reformed).
Appellant’s 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 review of this case by the Texas Court of Criminal Appeals, he must
either retain an attorney to file a petition for discretionary review on his behalf or he must file a
petition for discretionary review pro se. Any petition for discretionary review must be filed
within thirty days after either the date of this court’s judgment or the date the last timely motion
for rehearing was overruled by this court. See TEX. R. APP. P. 68.2(a). Any petition for
discretionary review must be filed with 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 Texas
Rule of Appellate Procedure 68.4. See Schulman, 252 S.W.3d at 408 n.22.
Opinion delivered June 10, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JUNE 10, 2015
NO. 12-14-00234-CR
JAMES CHRISTOPHER FETZER,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 217th District Court
of Angelina County, Texas (Tr.Ct.No. 2013-0378)
THIS CAUSE came on to be heard on the appellate record and the brief
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s “corrected” judgment below be modified to reflect that the trial court found the first
enhancement paragraph “true,” and Appellant’s plea to the second enhancement paragraph is
“N/A;” and as modified, the trial court’s judgment is affirmed; and that this decision be
certified to the trial court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JUNE 10, 2015
NO. 12-14-00235-CR
JAMES CHRISTOPHER FETZER,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 217th District Court
of Angelina County, Texas (Tr.Ct.No. 2014-0413)
THIS CAUSE came to be heard on the appellate record and brief 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 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., Hoyle, J. and Neeley, J.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JUNE 10, 2015
NO. 12-14-00236-CR
JAMES CHRISTOPHER FETZER,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 217th District Court
of Angelina County, Texas (Tr.Ct.No. 2013-0502)
THIS CAUSE came to be heard on the appellate record and brief 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 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., Hoyle, J. and Neeley, J.