John David Lopez, II v. State ( 2005 )

11th Court of Appeals

Eastland, Texas

Opinion

John David Lopez, II

            Appellant

Vs.                  No. 11-04-00079-CR -- Appeal from Palo Pinto County

State of Texas

            Appellee

            The jury convicted John David Lopez, II of delivery of amphetamine and assessed his punishment at confinement for 20 years and a $10,000 fine. Appellant’s counsel has filed a motion to withdraw as appellate counsel and has accompanied the motion with a frivolous appeal brief. See Anders v. California, 386 U.S. 738 (1967). We grant appellate counsel’s motion to withdraw and affirm the judgment of the trial court. Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969).

            In his brief, counsel concludes, after a professional and conscientious examination and evaluation of the record, that the appeal is wholly frivolous and that there are no clear errors which were preserved for appeal. In accordance with Anders, counsel does, however, present one issue that he says might be arguable on appeal: that appellant received insufficient notice of the trial setting.

            Counsel has furnished appellant with a copy of the brief and motion and has advised appellant of his right to file a pro se brief. The time allotted for appellant to file a pro se brief has expired, and he has not filed a pro se brief. Counsel has complied with Anders v. California, supra; Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App.1991); High v. State, 573 S.W.2d 807 (Tex.Cr.App.1978); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); and Gainous v. State, supra. See Eaden v. State, ___ S.W.3d ___ (No. 11-03-00405-CR, Tex.App. - Eastland, February 10, 2005)(not yet reported).

            As required by Anders and its progeny, we have conducted an independent examination of the proceedings and have determined that the issue presented by counsel is not arguable and that this appeal is wholly frivolous. See Eaden v. State, supra.

            The same trial counsel represented appellant on four felony charges. Appellant was convicted on one of the charges in 2001. In 2003, after appellant had been released from confinement for that conviction, notice was given to appellant that one of the four cases that had been filed against him earlier, charging appellant with the possession of a firearm by a felon, was set for trial. There were pretrial hearings on that case in December 2003 and January 2004. At those pretrial hearings, appellant announced that he was ready for trial. On December 22, 2003, and again on February 17, 2004, appellant was notified that the State intended to introduce evidence of the present offense as well as others. On February 24, 2004, appellant filed a motion for continuance. On February 25, 2004, appellant received notice that the case now before this court was set for trial on March 1, 2004. At the hearing on the motion for continuance, the trial court asked trial counsel “what [had] changed about this case since [he had] announced ready [in] December” and if there was “any new evidence or new witnesses to investigate or any new physical evidence.” Counsel told the trial court that he was not aware of any. We note that appellant had been under indictment and had been represented by the same trial counsel in this case for over two years when the case went to trial. The trial court denied the motion for continuance. The issue raised by appellate counsel is not one which is arguable on appeal. The appeal is wholly frivolous.

            Counsel’s motion to withdraw is granted, and the judgment of the trial court is affirmed.

                                                                                    PER CURIAM

February 10, 2005

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.