James E. Andrews v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-247-CR
JAMES E. ANDREWS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Introduction
Appellant James E. Andrews appeals his conviction for assault of a public
servant, a crime that carries a punishment range of two to ten years’
confinement. See Tex. Penal Code Ann. § 12.34(a) (Vernon 2003),
§ 22.01(a)(1), (b)(1) (Vernon Supp. 2008). We affirm his conviction, and we
grant his appellate counsel’s motion to withdraw on the basis of counsel’s
1
… See Tex. R. App. P. 47.4.
Anders brief. See Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct.
1396, 1400 (1967).
Background Facts
In August 2004, a Tarrant County grand jury indicted appellant for
striking a Fort Worth police officer. After the trial court appointed counsel for
appellant and the State announced that it was ready for trial, appellant received
admonishments from the trial court and pled guilty. The trial court deferred its
adjudication of appellant’s guilt, and it placed him on eight years’ community
supervision. The conditions of appellant’s community supervision required him
to (among other acts) commit no further offenses and avoid using illegal drugs.
In August 2005, the State filed a petition to proceed to the adjudication
of appellant’s guilt; in response, the trial court modified the terms of his
community supervision. The trial court changed such terms again in November
2005, December 2006, and November 2007.
In June 2008, the State filed a second petition to proceed to adjudication.
In that petition, the State alleged that appellant violated the conditions of his
community supervision by using cocaine, submitting diluted urine samples while
being tested for drug use, and failing to report to his probation department.
In July 2008, appellant waived certain constitutional and statutory rights, and
2
he entered open pleas of true to each of the State’s allegations. 2 On July 11,
2008, after appellant rejected a plea bargain offer of three years’ confinement
and the State recommended to the trial court in writing that appellant receive
five years’ confinement, the trial court found appellant guilty, and it sentenced
him to eight years’ confinement. That same day, appellant filed his pro se
notice of this appeal.
In December 2008, appellant’s appointed counsel filed a motion to
withdraw from his representation of appellant, contending that appellant’s
appeal is frivolous; counsel concurrently filed a brief that satisfies the
requirements of Anders by presenting a professional evaluation of the record
demonstrating why there are no arguable grounds for relief. See Anders, 386
U.S. at 744–45, 87 S. Ct. at 1400; In re Schulman, 252 S.W.3d 403, 406–12
(Tex. Crim. App. 2008). We sent appellant a letter notifying him of his
counsel’s motion and informing him of his right to file a pro se appellate brief.
We have not received any brief from appellant, nor have we received any
communication from him indicating that he desires to file such a brief. 3
2
… While entering his pleas of true, appellant affirmed that he understood
that the trial court could set his punishment “anywhere within the range of
punishment prescribed by law” for his offense.
3
… We also have not received a brief from the State.
3
Our Duties under Anders
As the reviewing court, we must conduct an independent evaluation of
the record to determine whether counsel is correct in concluding that the appeal
is frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.
1991); Mays v. State, 904 S.W.2d 920, 923 (Tex. App.—Fort Worth 1995, no
pet.). Only then may we grant counsel’s motion to withdraw. See Penson v.
Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).
We have carefully reviewed the record and counsel’s Anders brief.
We agree with counsel that this appeal is wholly frivolous and that it is without
merit. We find nothing in the record that might arguably support the appeal.4
See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005).
Therefore, we grant counsel’s motion to withdraw, and we affirm the trial
court’s judgment.
TERRIE LIVINGSTON
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 16, 2009
4
… We note that appellant’s pleas of true to the State’s allegations were
sufficient to support the revocation of his community supervision. See Rincon
v. State, 615 S.W.2d 746, 747 (Tex. Crim. App. [Panel Op.] 1981). We also
note that, as indicated above, the trial court’s sentence was within the
statutory punishment range for appellant’s assault conviction.
4