Demaria Travar Woods v. State ( 2011 )

NOS. 12-09-00304-CR
12-09-00305-CR
12-09-00306-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DEMARIA TRAVAR WOODS, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
DeMaria Travar Woods appeals his convictions for engaging in organized criminal
activity, aggravated robbery, and evading arrest or detention. 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). Appellant also filed a brief pro se.
We dismiss Appellant=s appeal.
BACKGROUND
Appellant was charged by indictment with the offense of engaging in organized criminal
activity, a first degree felony. 1 The indictment further alleged that Appellant committed the
offense as a member of a criminal street gang. Appellant was also charged by indictment with the
1
See TEX. PENAL CODE ANN. § 71.02(a)(1), (b) (Vernon Supp. 2010).
offense of aggravated robbery, a first degree felony. 2 The indictments for engaging in organized
criminal activity and aggravated robbery alleged that Appellant used or exhibited deadly
weapons—a firearm and a crowbar—during the commission of or immediate flight from the
offense. 3 Finally, Appellant was charged by indictment with the offense of evading arrest or
detention, a state jail felony.4
Appellant entered an “open” plea of guilty to the offenses charged in the indictments,
pleaded “true” to the deadly weapon allegations, and pleaded “true” to the allegation that he
committed the offense of engaging in organized criminal activity as a member of a criminal street
gang. In each case, Appellant and his counsel signed an agreed punishment recommendation, an
acknowledgment of admonishments, a waiver of jury trial, an agreement to stipulate testimony,
and a stipulation of evidence in which Appellant swore that all allegations pleaded in the
indictment were true and correct. He also judicially confessed to the offenses alleged in the
indictments. However, Appellant did not waive his right to appeal.
After a punishment hearing, the trial court adjudged Appellant guilty of engaging in
organized criminal activity, made an affirmative deadly weapon finding, made a finding that
Appellant committed the offense as a member of a criminal street gang, and assessed his
punishment at twenty years of imprisonment and court costs. 5 The trial court also adjudged
Appellant guilty of aggravated robbery, made an affirmative deadly weapon finding, and assessed
his punishment at twenty years of imprisonment and court costs. Finally, the trial court adjudged
Appellant guilty of evading arrest and assessed his punishment at two years of confinement and
court costs.6 This appeal followed.
2
See TEX. PENAL CODE ANN. § 29.03(a)(2), (b) (Vernon 2003).
3
Initially, the indictments against Appellant for engaging in organized criminal activity and aggravated
robbery also included a felony enhancement paragraph. However, the State abandoned the enhancement paragraph
in each case at Appellant’s punishment hearing.
4
See TEX. PENAL CODE ANN. § 38.04(a), (b)(1)(B) (Vernon Supp. 2010).
5
An individual adjudged guilty of a first degree felony shall be punished by imprisonment for life or for any
term of not more than ninety-nine years or less than five years and, in addition, a fine not to exceed $10,000. See TEX.
PENAL CODE ANN. § 12.32 (Vernon Supp. 2010).
6
An individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any
term of not more than two years or less than 180 days and, in addition, a fine not to exceed $10,000. See TEX. PENAL
CODE ANN. § 12.35(a), (b) (Vernon Supp. 2010).
2
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 and 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 these
cases. 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
cases, and further states that counsel is unable to raise any arguable issues for appeal.
In Appellant=s pro se brief, he argues that he should have been indicted for the lesser
included offense of robbery because he did not use or exhibit a deadly weapon during the
commission of the offense. 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).
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 agree with Appellant=s counsel that the appeal is wholly
frivolous and his motion for leave to withdraw is hereby granted. See In re Schulman, 252
S.W.3d at 408-09.
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 these cases 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 this court, after which it will be forwarded to
the Texas Court of Criminal Appeals along with the rest of the filings in these cases. See TEX. R.
APP. P. 68.3; In re Schulman, 252 S.W.3d at 408 n.22. Any petition for discretionary review
3
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.
We dismiss Appellant=s appeal.
Opinion delivered February 28, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
4