Joe Guerra, Jr. v. State ( 2006 )

                              NUMBER 13-05-164-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG 

JOE GUERRA, JR.,                                                                         Appellant,

v.

THE STATE OF TEXAS,                                                                 Appellee.

On appeal from the 156th District Court of Bee County, Texas.

MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Rodriguez and Garza

                            Memorandum Opinion by Justice Garza                                  

Appellant, Joe Guerra, Jr., appeals his conviction of possession of a firearm by a felon.  See Tex. Pen. Code Ann. ' 46.04 (Vernon Supp. 2005).  Without the benefit of a plea agreement, appellant pleaded guilty to the felony offense of felon in possession of a weapon and pleaded true to the enhancement paragraph of the indictment.  See id.  The court found appellant guilty of the crime as charged and found the enhancement paragraph to be true, thus enhancing the offense to a second degree felony.  The court assessed punishment at eight years' confinement.  See Tex. Pen. Code Ann. ' 12.33 (Vernon 2003).  Appellant now appeals the judgment of the trial court.  We affirm.

I.  Anders Brief

Appellant's counsel has filed an Anders brief with this Court, in which he states that he has reviewed the record and concludes that only one possible issue exists for appeal.  See Anders v. California, 386 U.S. 738, 744 (1967).  Counsel's brief further concludes that the issue lacks merit and any appeal in this case would be frivolous.  See id.  The brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal.  See 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. 1978), counsel has carefully discussed why, under controlling authority, there are no errors in the trial court's judgment.  Counsel certifies that he has served a copy of his brief on appellant and informed appellant of his right to file a pro se brief.  More than thirty days have passed and no pro se brief has been filed.  See Tex. R. App. P. 38.6.           

II.  Sentencing

Appellant's counsel suggests that a possible issue for appeal is that the trial court abused its discretion when it sentenced appellant to eight years= incarceration. We review a sentence imposed by the trial court for abuse of discretion.  Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (en banc).  To preserve error for appellate review, appellant must have made a timely, specific objection, at the earliest opportunity, and obtained an adverse ruling on the sentencing issue.  Tex. R. App. P. 33.1; Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991) (en banc).  Appellant did not object to the sentence imposed on any basis, including abuse of discretion.  We find that he forfeited any challenge to the sentence imposed in the case.  See Rhoades v. State, 934 S.W.2d 113, 119‑20 (Tex. Crim. App. 1996) (en banc). Moreover, the sentence assessed was within the statutorily permissible range and was based on admissible evidence introduced at the sentencing proceeding.  See Tex. Pen. Code Ann. ' 12.33 (providing range of two to twenty years= punishment for second degree felony plus a maximum fine of ten thousand dollars); Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973).  We find no arguable error in the sentencing phase of the proceedings.

III.  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 (1988).  We have reviewed the remainder of the record and find that the appeal is wholly frivolous.  See Stafford, 813 S.W.2d at 509.  Accordingly, we affirm the judgment of the trial court.

IV.  Motion to Withdraw

In accordance with Anders, appellant's attorney has asked permission to withdraw as counsel for appellant.  See Anders, 386 U.S. at 744.  We grant his motion to withdraw.  We further order counsel to notify appellant of the disposition of this appeal and the availability of discretionary review.  See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).

DORI CONTRERAS GARZA,

Justice

Do not publish.                                             

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 9th day of February, 2006.