Felmon Lakeith Laury v. State of Texas ( 2012 )

Opinion filed March 22, 2012

                                                                       In The

  Eleventh Court of Appeals

                                                                   __________

                                                         No. 11-10-00317-CR

                                                    __________

                            FELMON LAKEITH LAURY, Appellant

                                                             V.

                                      STATE OF TEXAS, Appellee

                                   On Appeal from the 82nd District Court

                                                        Robertson County, Texas

                                             Trial Court Cause No. 08-03-18448CR

M E M O R A N D U M    O P I N I O N

Pursuant to a plea agreement, Felmon Lakeith Laury pleaded guilty in 2008 to the offense of aggravated assault with a deadly weapon.  The trial court deferred a finding of guilt and placed him on deferred adjudication community supervision for a term of ten years.  In 2010, the State filed a motion to proceed with an adjudication of guilt, alleging multiple violations of the terms and conditions of community supervision.  The trial court heard the motion to proceed on August 25, 2010.  The trial court took the matter under advisement at the conclusion of the hearing.

The trial court subsequently entered a written judgment, finding the alleged violations to be true, adjudicating appellant guilty of the charged offense, and assessing his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of twenty years.  However, the trial court failed to sentence appellant in open court.  Pursuant to the requirements of Tex. R. App. P. 44.4, we entered an order on August 25, 2011, abating the appeal and remanding it to the trial court so that sentence could be pronounced in open court with appellant present.  See Keys v. State, 340 S.W.3d 526 (Tex. App.—Texarkana 2011, order); Meachum v. State, 273 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, order).  After the trial court complied with our order, we reinstated the appeal.  We now dismiss the appeal.

Appellant’s court-appointed counsel has filed a motion to withdraw.  The motion is supported by a brief in which counsel professionally and conscientiously examines the record and applicable law and states that he has concluded that the appeal is frivolous.  Counsel has provided appellant with a copy of the brief and advised appellant of his right to review the record and file a response to counsel’s brief.  Court-appointed counsel has complied with the requirements of Anders v. California, 386 U.S. 738 (1967); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); and Eaden v. State, 161 S.W.3d 173 (Tex. App.—Eastland 2005, no pet.).

Appellant has filed a pro se response to counsel’s motion to withdraw and supporting brief.  In addressing an Anders brief and pro se response, a court of appeals may only determine (1) that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error or (2) that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues.  Schulman, 252 S.W.3d 403; Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).

Following the procedures outlined in Anders and Schulman, we have independently re-viewed the record, and we agree that the appeal is without merit and should be dismissed.  Schulman, 252 S.W.3d at 409. 

We note that counsel has the responsibility to advise appellant that he may file a petition for discretionary review with the clerk of the Texas Court of Criminal Appeals seeking review by that court.  Tex. R. App. P. 48.4 (“In criminal cases, the attorney representing the defendant on appeal shall, within five days after the opinion is handed down, send his client a copy of the opinion and judgment, along with notification of the defendant’s right to file a pro se petition for discretionary review under Rule 68.”).  Likewise, this court advises appellant that he may file a petition for discretionary review pursuant to Tex. R. App. P. 68.

 The motion to withdraw is granted, and the appeal is dismissed. 

                                                                                                            PER CURIAM

March 22, 2012

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Kalenak, J.