Charley Dee Phillips, Sr. v. State of Texas ( 2010 )

Opinion filed April 1, 2010
In The
Eleventh Court of Appeals
___________
No. 11-09-00067-CR
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CHARLEY DEE PHILLIPS, SR., Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court
Taylor County, Texas
Trial Court Cause No. 23201A
MEMORANDUM OPINION
The jury convicted Charley Dee Phillips, Sr. of aggravated assault. Appellant entered a plea
of true to both enhancement allegations, and the trial court assessed his punishment at confinement
for thirty years. We dismiss.
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 she has concluded that the appeal is frivolous.
Counsel presents one arguable issue on appeal. Counsel examines whether trial counsel was
ineffective for failing to call appellant to explain the situation. As counsel notes, the decision
whether to testify is the defendant’s and is made with the help of trial counsel. Appellant choosing
not to testify is reasonable trial strategy. The record does not support a claim of ineffective
assistance of counsel at trial. Wiggins v. Smith, 539 U.S. 510, 520 (2003); Strickland v. Washington,
466 U.S. 668, 690 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005);
Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). The arguable issue is overruled.
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. A response has been filed. 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.).
In his response, appellant contends that he was denied due process and due course of law in
the trial court because his trial counsel provided ineffective assistance of counsel and that the grand
jury erred in the indictment. We note that the Texas Court of Criminal Appeals stated in Bledsoe v.
State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005), that the court of appeals is to review
appellant’s pro se claims and examine the record in order to determine whether the record reflects
no reversible error and the appeal should be dismissed or whether arguable grounds exist and new
counsel should be appointed. We have complied with the requirements in Bledsoe and have found
no reversible error.
Following the procedures outlined in Anders, we have independently reviewed the record,
and we agree that the appeal is without merit. We note that counsel has the responsibility to advise
appellant that he may file a petition for discretionary review by the Texas Court of Criminal Appeals.
Ex parte Owens, 206 S.W.3d 670 (Tex. Crim. App. 2006). Likewise, this court advises appellant
that he may file a petition for discretionary review pursuant to TEX . R. APP . P. 66. Black v. State,
217 S.W.3d 687 (Tex. App.—Eastland 2007, no pet.).
The motion to withdraw is granted, and the appeal is dismissed.
April 1, 2010 PER CURIAM
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
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