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Jimmie Lee Mims v. State ( 2011 )


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  •                                          NO. 12-09-00323-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JIMMIE LEE MIMS,                                          '            APPEAL FROM THE 7TH
APPELLANT
V.                                                        '            JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE                                                  '            SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Jimmie Lee Mims appeals his conviction for sexual assault. Appellant’s counsel has 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 dismiss the appeal.
BACKGROUND
Appellant pleaded guilty to the offense of sexual assault. As charged, the offense was a second
degree felony because the indictment alleged that Appellant penetrated the sexual organ of a child
under the age of seventeen.1 The trial court admonished Appellant of his rights, and Appellant
pleaded guilty without benefit of a plea agreement. The trial court accepted Appellant’s plea of
guilty.
The trial court held a sentencing hearing on September 9, 2009. Appellant presented the
testimony of his sister at that hearing. The trial court considered that testimony, the presentence
1
See TEX. PENAL CODE ANN. § 22.011(a)(2)(A), (f) (Vernon Supp. 2010).
investigation report, and the arguments of counsel before assessing a sentence of imprisonment for
twenty years. This appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant=s counsel has filed a brief in compliance with Anders and Gainous. Counsel states
that he has diligently reviewed the appellate record and that he is well acquainted with the facts of this
case. 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 that counsel is unable to present any arguable issues for appeal.2 See
    Anders, 386 U.S. at 745
    , 87 S. Ct. at 1400; see also Penson v. Ohio,
    488 U.S. 75
    , 80,
    109 S. Ct. 346
    , 350,
    102 L. Ed. 2d 300 
    (1988). We have likewise reviewed the record for reversible error and have found
none.
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 are in agreement with Appellant’s counsel that the appeal is wholly
frivolous. Accordingly, counsel’s motion for leave to withdraw is hereby granted, and we dismiss
this appeal. See In re
    Schulman, 252 S.W.3d at 408-09 
    (“After the completion of these four steps,
the court of appeals will either agree that the appeal is wholly frivolous, grant the attorney=s motion to
withdraw, and dismiss the appeal, or it will determine that there may be plausible grounds for
appeal.”).
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 this case 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
2
Counsel for Appellant has certified that he provided Appellant with a copy of this brief. Appellant was given
time to file his own brief in this cause. The time for filing such a brief has expired, and we have received no pro se brief.
2
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 this case. See TEX. R. APP. P. 68.3. Any petition for discretionary
review 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.
Opinion delivered January 31, 2011.
Panel consisted of Worthen, C.J., Griffith, J, and Hoyle, J.
(DO NOT PUBLISH)
3