Lemons, Kirmon v. State ( 2000 )

NUMBER 13-00-024-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

KIRMON LEMONS

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 24th District Court of De Witt County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Dorsey, Rodriguez, and Kennedy⁽¹⁾ Opinion by Justice Kennedy

Appellant pleaded nolo contendere to injury of a child and was assessed punishment of twenty years confinement and a five thousand dollar fine. Although appellate counsel is of the opinion that the appeal is frivolous and without merit, he presents two issues which, arguably, could support an appeal. They are:

Issue 1: The judgment of the trial court is void because appellant's plea of "no contest" is not a plea recognized by article 27.02, Texas Code of Criminal Procedure.

Issue 2: The trial court erred by refusing to allow appellant's witness at punishment to express his opinion as to what the proper punishment should be.

In support of issue one, appellant cites article 27.02 of the Texas Code of Criminal Procedure to require that a defendant's plea be guilty, not guilty, or nolo contendere. The phrase "nolo contendere" is Latin meaning "I will not contest it." Black's Law Dictionary, 1048 (6^th Ed. 1990). By pleading "no contest," appellant has merely pleaded the English translation of the Latin phrase. Odom v. State, 962 S.W.2d 117 (Tex. App. ­ Houston [1^st Dist.] 1997, pet. ref'd.).

In regard to issue two, this Court has held that the argument that a witness may recommend a particular punishment to the trier of fact has been soundly rejected. Hughes v. State, 787 S.W.2d 193, 196 (Tex. App. ­ Corpus Christi 1990, pet. ref'd).

Appellate counsel has certified that he has sent a copy of his brief to appellant and he encloses in his brief a copy of a cover letter which was sent to appellant advising him of his right to raise any points he chooses. This letter was sent in March of this year. No pro se brief has been filed.

To conform to the requirement of Penson v. Ohio, 488 U.S. 75 (1988), we have conducted a full examination of all the proceedings and conclude that the appeal is wholly frivolous.

We AFFIRM the judgment of the trial court.

NOAH KENNEDY

Retired Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this the 14th day of December, 2000.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).