Joyce Marie Acey v. State ( 2010 )

NO. 07-10-0176-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
DECEMBER 16, 2010
JOYCE MARIE ACEY, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 60,869-D; HONORABLE DON EMERSON, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Joyce Marie Acey, pled guilty in open court to the offense of
unauthorized use of a motor vehicle 1 and was sentenced to 12 months confinement. In
1
See Tex. Penal Code Ann. § 31.07 (West 2003). An offense under this section is a state jail felony
punishable by confinement in a state jail for any term of not more than two years or less than 180 days.
Id. at § 12.35(a) (West ___).
presenting her appeal, counsel has filed an Anders 2 brief in support of a motion to
withdraw. We grant counsel's 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 also 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 her of her right to file a pro se response if she desired to do so,
and (3) informing her of her right to file a pro se petition for discretionary review. In re
Schulman, 252 S.W.3d at 408. 3 Appellant's pro se response does not raise any legal
issues but reasserts her plea made to the trial court at the punishment hearing and asks
for community supervision. 4 The State has not filed any response.
2
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
3
Notwithstanding that Appellant was informed of her right to file a pro se petition for discretionary review
upon execution of the Trial Court's Certification of Defendant's Right of Appeal, counsel must comply with
Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days
after this opinion is handed down, send Appellant a copy of the opinion and judgment together with
notification of her right to file a pro se petition for discretionary review. Tex. R. App. P. 48.4. See In re
Schulman, 252 S.W.2d at 408 n.22 & 411 n.35.
4
We are without authority to reform Appellant's sentence to community supervision. Ex parte Hernandez,
698 S.W.2d 670, 670 (Tex.Crim.App. 1985) (citing Ocker v. State, 477 S.W.2d 288, 290 (Tex.Crim.App.
1972)); Gunther v. State, 764 S.W.2d 903, 906 (Tex.App.--Corpus Christi 1989, no pet.). See Tex. R.
App. P. 21.9.
2
We have reviewed counsel's arguments and 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, 80, 109 S. Ct. 346, 102 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, 138 (Tex.Crim.App. 1969). After reviewing the record,
counsel's brief, and Appellant's pro se response, we agree with counsel that there are
no plausible grounds for appeal.
Accordingly, counsel's motion to withdraw is granted and the trial court's
judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
3