Elzie Lilly, III. v. State ( 2003 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00158-CR

______________________________

ELZIE LILLY, III, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 30143-B

---

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

          Elzie Lilly, III, appeals from his conviction, on his plea of guilty without a plea agreement, to the offense of delivery of cocaine in an amount between one and four grams. A jury assessed his punishment at nine years' imprisonment. Lilly also has a pending appeal in a companion case, in which he pled guilty to delivery of cocaine in an amount less than one gram. In that case, he was sentenced to 180 days' confinement in a state jail facility. The two cases were tried together, and he has raised the same contention of error, supported by the same arguments, in each appeal.

          In his single contention of error, Lilly argues he received ineffective assistance of counsel at trial. For the reasons stated in our opinion in cause number 06-03-00157-CR, decided this date, we likewise find his contention in this appeal to be without merit.

          We affirm the judgment.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      December 5, 2003

Date Decided:         December 8, 2003

Do Not Publish

objected on the ground of hearsay, and the trial court sustained the objection. A sworn application for community supervision is hearsay and not admissible as evidence. Walker v. State, 440 S.W.2d 653 (Tex. Crim. App. 1969); Green v. State, 658 S.W.2d 303 (Tex. App.--Houston [1st Dist.] 1983, pet. ref'd).

Counsel's statements are supported by the record.

We have reviewed the record and find the evidence sufficient to support the conviction. Based on our review of the record of this proceeding, we also agree with counsel that there are no arguable points of error in this case. ⁽²⁾  

We affirm the judgment of the trial court.

Bailey C. Moseley

Justice

Date Submitted: October 5, 2007

Date Decided: October 8, 2007

Do Not Publish

1. We also recognize that there is evidence McMullen is entirely illiterate--as shown by testimony that he could neither read nor write, and functioned at below a first-grade level; thus, the likelihood that he could engage in any of the acts that would typically result in the filing of an Anders response is minimal.

2.

Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel's request to withdraw from further representation of McMullen in this case. No substitute counsel will be appointed. Should McMullen wish to seek further review of this case by the Texas Court of Criminal Appeals, McMullen must either retain an attorney to file a petition for discretionary review or McMullen must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that is 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.