James Ray Pendergraft v. the State of Texas ( 2021 )

NO. 12-18-00091-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JAMES RAY PENDERGRAFT, § APPEAL FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
James Ray Pendergraft appeals his conviction for aggravated assault with a deadly weapon.
Appellant’s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct.
1396, 18 L. Ed. 2d 493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969).
We affirm.
BACKGROUND
Appellant was charged by indictment with the offense of aggravated assault with a deadly
weapon, a second degree felony, 1 by intentionally, knowingly, and recklessly causing bodily injury
to the victim by striking the victim with a bat, and that the Appellant used or exhibited a deadly
weapon, i.e., a bat. The indictment also included one felony enhancement paragraph. Appellant
pleaded “not guilty,” and the case proceeded to a jury trial. At the conclusion of the trial, the jury
found Appellant guilty of aggravated assault with a deadly weapon as charged in the indictment.
At the sentencing hearing, Appellant pleaded “true” to the enhancement paragraph. Consequently,
the trial court found the enhancement paragraph to be “true” and assessed Appellant’s punishment
1
See TEX. PENAL CODE ANN. § 22.02(a)(2), (b) (West 2019).
at thirty-five years of imprisonment. 2 The trial court also made an affirmative finding that
Appellant used or exhibited a deadly weapon, i.e., a bat, during the commission of the offense.
This appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant’s counsel 3 filed a brief in compliance with Anders and Gainous, stating that she
diligently reviewed the appellate record and is of the opinion that the record reflects no reversible
error and that there is no error upon which an appeal can be predicated. From our review of
counsel’s brief, it is apparent that counsel is well acquainted with the facts in this case. In
compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App.
1978), counsel’s brief presents a chronological summation of the procedural history of the case,
and further states that counsel is unable to raise any arguable issues for appeal. 4
Appellant filed a pro se response, stating that when he pleaded guilty, he protested that he
did not “beat [his] wife with [a] baseball bat.” He argues that the trial court abused its discretion
for not recognizing his statement as an Alford plea. See North Carolina v. Alford, 400 U.S. 25,
91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). Further, Appellant contends that on two subsequent
occasions, he petitioned, along with the State, for the trial court to accept the plea agreement, the
2
If it is shown on the trial of a second degree felony that the defendant has previously been finally convicted
of a felony other than a state jail felony, on conviction the defendant shall be punished for a first degree felony. See
TEX. PENAL CODE ANN. § 12.42(b) (West 2019). An individual adjudged guilty of a first degree felony shall be
punished by imprisonment for life or for any term of not more than ninety-nine years or less than five years, and in
addition, a fine not to exceed $10,000.00. See id. § 12.32 (West 2019).
3
Appellant’s original appellate counsel also filed a brief in compliance with Anders and Gainous, and moved
to withdraw. We affirmed and granted counsel’s motion to withdraw. See Pendergraft v. State, No. 12-18-00091-
CR, 2019 WL 1716010 (Tex. App.—Tyler Apr. 17, 2019) (mem. op.) (not designated for publication), vacated No.
PD-0474-19, 2020 WL 2062305 (Tex. Crim. App. Apr. 29, 2020) (not designated for publication). On appeal to the
Texas Court of Criminal Appeals, the Court vacated our judgment and remanded the case to this court because it
determined that Appellant had “not had access to the appellate record so as to afford him the ability to file a pro se
response.” Pendergraft, 2020 WL 2062305, at *1. Upon remand, the trial court appointed new appellate counsel to
represent Appellant. Appellant’s new appellate counsel filed a letter with this court stating that after a diligent review
of the record, she found no meritorious issues to raise on appeal. Thus, she adopted the Anders brief filed by
Appellant’s original appellate counsel.
4
In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief, notified
Appellant of her motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took
concrete measures to facilitate Appellant’s review of the appellate record. See Kelly v. State, 436 S.W.3d 313, 319
(Tex. Crim. App. 2014). Appellant was given time to file his own brief.
2
agreed upon twelve-year prison sentence, and a new stipulation of evidence pursuant to the
indictment. He contends that the trial court abused its discretion by rejecting his guilty pleas and
not “reach[ing] a rational decision based on all relevant factors.” And, he argues, the trial court
adversely proceeded against Appellant when it decided to apply an “appropriate sentence [of] 35
years [in prison].” We have reviewed the record for reversible error and have found none. See
Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
CONCLUSION
As required by Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991), Appellant’s
counsel moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim.
App. 2008) (orig. proceeding). We carried the motion for consideration with the merits. Having
done so and finding no reversible error, Appellant’s counsel’s motion for leave to withdraw is
hereby granted, and the trial court’s judgment is affirmed. See TEX. R. APP. P. 43.2.
Appellant’s counsel has a duty to, within five days of the date of this opinion, send a copy
of the opinion and judgment to Appellant and advise him of his right to file a petition for
discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 22 S.W.3d at 411 n.35. Should
Appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, he
must either retain an attorney to file a petition for discretionary review or he must file a pro se
petition for discretionary review. See In re Schulman, 22 S.W.3d at 408 n. 22. Any petition for
discretionary review must be filed within thirty days from the date of either this opinion, or if a
motion for rehearing is filed, the date that the last timely motion for rehearing is overruled by this
Court. See TEX. R. APP. P. 68.2(a). Any petition for discretionary review must be filed with the
Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review
should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See
TEX. R. APP. P. 68.4; In re Schulman, 22 S.W.3d at 408 n. 22.
Opinion delivered October 6, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 6, 2021
NO. 12-18-00091-CR
JAMES RAY PENDERGRAFT,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-1264-17)
THIS CAUSE came to be heard on the appellate record and briefs filed herein,
and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below for
observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
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