Bennie Miller v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00321-CR
BENNIE MILLER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Bennie Miller appeals the trial court’s judgment adjudicating his
guilt and imposing a fifteen-year prison sentence for indecency with a child. We
affirm.
Appellant pleaded guilty to indecency with a child and received a ten-year
term of deferred-adjudication probation.2 Appellant was placed on the sex
1
See Tex. R. App. P. 47.4.
offender caseload. The terms and conditions of his community supervision were
amended or supplemented three times—by orders filed April 12, 2007,
September 10, 2009, and February 24, 2010. On May 27, 2010, the State filed
their first petition to proceed to adjudication which contained three paragraphs
alleging violations of Appellant’s community supervision.
On July 30, 2010, after receiving admonishments from the court, Appellant
pleaded true to paragraphs two and three of the petition. The State waived the
allegation contained in the first paragraph of the petition. He entered his pleas of
true without the benefit of a plea bargain. The State rested on the pleas of true.
Appellant presented testimony from his wife and his sex offender treatment
counselor. After the conclusion of the evidence and the arguments of counsel,
the court found the remaining two allegations to be true. The court then found
Appellant guilty of indecency with a child, and gave both the State and Appellant
an opportunity to present evidence on punishment, which was declined.
Appellant was sentenced to fifteen years in prison and advised of his right to
appeal. This appeal followed.
2
Appellant was charged in a two count indictment with aggravated sexual
assault of a child and indecency with a child by contact. The complainant was
Appellant’s granddaughter. Appellant pleaded guilty to the second count
charging indecency with a child on March 7, 2005, without a plea bargain.
Although there is no reporter’s record of the original plea for review, it appears
the State waived the first count of the indictment. While awaiting the preparation
of a pre-sentencing report, an agreement was reached between Appellant and
the State for ten-years’ deferred adjudication on April 25, 2005.
2
Appellant’s court-appointed appellate counsel has filed a motion to
withdraw as counsel and a brief in support of that motion. In the brief, counsel
avers that, in his professional opinion, the appeal is frivolous. Counsel’s brief
and motion meet the requirements of Anders v. California, 386 U.S. 738, 87
S. Ct. 1396 (1967), by presenting a professional evaluation of the record
demonstrating why there are no arguable grounds for relief. We gave Appellant
the opportunity to file a pro se brief, and he has not filed one. Appellant did write
a letter received by this court on March 29, 2011, but in it he raised no issue
concerning error by the trial court. Instead, Appellant’s letter was a plea for this
court to consider his age and multiple medical conditions in making a decision.
The State also has not filed a brief.
Once an appellant’s court-appointed attorney files a motion to withdraw on
the ground that the appeal is frivolous and fulfills the requirements of Anders, this
court is obligated to undertake an independent examination of the record. See
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State,
904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no pet.). Only then may
we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–
83, 109 S. Ct. 346, 351 (1988).
We have carefully reviewed the record and counsel’s brief. We agree with
counsel that this appeal is wholly frivolous and without merit; we find nothing in
the record that might arguably support the appeal. See Bledsoe v. State, 178
S.W.3d 824, 827–28 (Tex. Crim. App. 2005); see also Meza v. State, 206 S.W.3d
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684, 685 n.6 (Tex. Crim. App. 2006). Accordingly, we grant counsel’s motion to
withdraw and affirm the trial court’s judgment.
PER CURIAM
PANEL: GABRIEL, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 22, 2011
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