Carl Richard Elmore v. State of Texas ( 2011 )

Opinion filed November 17, 2011
In The
Eleventh Court of Appeals
__________
No. 11-11-00088-CR
__________
CARL RICHARD ELMORE, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 17904B
MEMORANDUM OPINION
Carl Richard Elmore entered an open plea of no contest to the offense of aggravated
assault arising from an incident wherein he cut Justin Scott Cook on the arm with a knife. In this
regard, the State agreed to dismiss another charge of aggravated assault arising from an incident
wherein appellant struck another individual on the head with a baseball bat. After receiving
evidence pertaining to guilt and punishment, the trial court found appellant guilty of aggravated
assault with a deadly weapon and assessed his punishment at confinement in the Institutional
Division of the Texas Department of Criminal Justice for a term of sixteen years. We 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
November 17, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.
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