Silverio Hernandez, Jr. v. State ( 2012 )

NO. 07-11-0435-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JUNE 29, 2012
______________________________
SILVERIO HERNANDEZ, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 287TH DISTRICT COURT OF BAILEY COUNTY;
NO. 2675-B; HONORABLE GORDON H. GREEN, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Pursuant to an open plea of guilty, Appellant, Silverio Hernandez, Jr., was convicted of burglary of a habitation and sentenced to ten years confinement, suspended in favor of ten years community supervision, and assessed a $10,000 fine. In presenting this appeal, counsel has filed an Anders brief in support of a motion to withdraw. We grant counsels motion and affirm.
In support of his motion to withdraw, counsel certifies he has conducted a conscientious examination of the record and, in his opinion, the record reflects no potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex.Crim.App. 2008). Counsel candidly discusses why, under the controlling authorities, the appeal is frivolous. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978). Counsel has demonstrated that he has complied with the requirements of Anders and In re Schulman by (1) providing a copy of the brief to Appellant, (2) notifying him of his right to file a pro se response if he desired to do so, and (3) informing him of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408. By letter, this Court granted Appellant an opportunity to exercise his right to file a response to counsels brief, should he be so inclined. Id. at 409 n.23. Appellant did not file a response. Neither did the State favor us with a brief.
At approximately 1:30 a.m. on or about November 6, 2010, a lieutenant with the Muleshoe Police Department was dispatched to a residence on a call of suspicious activity. When he arrived, he observed Appellant and other individuals exiting the house and an individual carrying an "armful of stuff" to a maroon SUV. When the individuals noticed the lieutenant, they dropped the items to the ground, jumped into the SUV and fled. The suspects were pursued by vehicle and then on foot. Appellant was eventually apprehended. He confessed to the crime.
When the case proceeded to trial a jury was selected, Appellant entered a plea of guilty and the case proceeded to the punishment phase. After presentation of the evidence, the State argued against community supervision and requested the jury to assess a "meaningful sentence in the penitentiary" based on other burglaries committed by Appellant in a nearby community. The defense pleaded for probation given that Appellant confessed to the crime and cooperated with police officers. After deliberating, the jury assessed a ten year sentence and a $10,000 fine and recommended suspension of the sentence, but not the fine.
We have independently examined the entire record to determine whether there are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d at 409; Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such issues. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After reviewing the record and counsels brief, we agree with counsel that there are no plausible grounds for appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005).
Accordingly, counsel's motion to withdraw is granted and the trial courts judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.