Cody Lee White v. State

NO. 07-04-0423-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

DECEMBER 28, 2004

______________________________

CODY LEE WHITE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 43,845-A; HONORABLE HAL MINER, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Appellant Cody Lee White appeals a conviction for aggravated theft of $1500 or more but less than $20,000, enhanced, and punishment of confinement for 8 years.  We affirm.   

Appellant was charged by indictment with the offense of aggravated theft of $1500 or more, but less than $20,000, enhanced by two state jail felonies .  Pursuant to a plea agreement with the State, appellant waived trial by jury and entered a plea of guilty.  The trial court accepted the plea of guilty, found that the evidence substantiated appellant’s guilt, followed the plea agreement and, on July 22, 2002, deferred adjudication of guilt and placed appellant on community supervision for 10 years.  Appellant did not appeal from the proceedings.  

On June 24, 2004, an Amended Motion to Proceed With Adjudication of Guilt on Original Charge was filed.  A hearing on the motion was conducted on July 9, 2004.  The trial court found allegations in the motion to be true.  Following a separate punishment hearing, the court sentenced appellant to confinement in the Institutional Division of the Texas Department of Criminal Justice for 8 years.  No motion for new trial was filed.  Appellant timely filed notice of appeal. The trial court certified appellant’s right of appeal.

Appellant’s appointed appellate counsel has filed a Motion to Withdraw and a Brief in Support thereof.  In support of the motion, counsel has certified that, in compliance with Anders v. California , 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), the record has been diligently reviewed.  In the opinion of counsel the record reflects no reversible error or grounds upon which a non-frivolous appeal can arguably be predicated.   See id .    

Counsel has attached exhibits showing that a copy of the Anders brief and Motion to Withdraw have been forwarded to appellant, and that counsel has appropriately advised appellant of his right to review the record and file a response to counsel’s motion and brief.  The appellate clerk has forwarded correspondence to appellant directing him to file any response to his counsel’s Anders brief and Motion to Withdraw no later than October 20, 2004.  Appellant has not filed a response to counsel’s motion and brief.

We have made an independent examination of the record to determine whether there are any arguable grounds meriting appeal.   See Penson v. Ohio , 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State , 813 S.W.2d 503, 511 (Tex.Crim.App. 1991).

The State offered unrebutted proof of appellant’s violations of community supervision conditions.  Appellant desired to testify, did so, and admitted to violations of conditions of his community supervision provisions.  The punishment imposed was within the range provided by statute.  The record does not support any arguably meritorious error which was harmful to appellant.      

The judgment of the trial court is affirmed.  Appellate counsel’s Motion to Withdraw is granted.     

Phil Johnson

Chief Justice

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