Johnnie Martin Banks v. State ( 1993 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-92-128-CR



JOHNNIE MARTIN BANKS,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT

NO. 40,500, HONORABLE JACK W. PRESCOTT, JUDGE PRESIDING

PER CURIAM

At a trial on an indictment accusing him of attempted murder, appellant entered a plea of no contest and judicially confessed to the lesser included offense of aggravated assault. Tex. Penal Code Ann. § (West 1989 & Supp. 1993). The district court found him guilty and assessed punishment at imprisonment for ten years.

Appellant's court-appointed attorney filed a brief in which he concludes that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). A copy of counsel's brief was delivered to appellant, and appellant was advised of his right to examine the appellate record and to file a pro se brief. No pro se brief has been filed.

A "response to brief for appellant" was filed on appellant's behalf by his daughter, asking that this Court grant him probation. The determination of the proper punishment, however, is a matter committed to the discretion of the trial court and cannot be disturbed by this Court.

We have carefully reviewed the record and counsel's brief and agree that the appeal is frivolous and without merit. Further, we find nothing in the record that might arguably support the appeal.

The judgment of conviction is affirmed.

[Before Chief Justice Carroll, Justices Aboussie and Jones]

Affirmed

Filed: April 21, 1993

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