Aaron Neal Parsons v. State

• Court: Court of Appeals of Texas
• Decided: November 7, 2002
• Docket: 13-01-00709-CR
• Status: Published

Opinion

                    NUMBERS 13-01-708-CR AND 13-01-709-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI B EDINBURG

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AARON NEAL PARSONS,                                                      Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

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                       On appeal from the Criminal District Court

                                of Jefferson County, Texas.

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                                   O P I N I O N

        Before Chief Justice Valdez and Justices Dorsey and Kennedy^[1]

                                 Opinion by Justice Kennedy

Appellant=s court- appointed attorney has filed a brief in which he has concluded that these  appeals are wholly frivolous and without merit.  Anders v. California, 386 U.S. 738 (1967).  The brief meets the requirements of Anders as it presents a professional evaluation of why there are no arguable grounds for advancing an appeal.  See Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); Lindsey v. State, 902 S.W.2d 9, 11 (Tex. App.BCorpus Christi 1995, no pet.).

Appellate counsel has included in his brief a statement certifying that he has sent a copy of his brief and the reporter=s record to appellant and has informed appellant by accompanying letter that it is the opinion of counsel that the appeals are without merit, and that he (appellant) personally has the right to view the record and file a pro se brief raising any ground of error or complaint which he may desire.  No pro se brief has been filed.

In Penson v. Ohio, 488 U.S. 75 (1988), the Supreme Court discussed the responsibilities of an appellate court upon receiving a Afrivolous appeal@ brief.  The court stated: AOnce the appellate court receives this brief, it must then, itself, conduct a full examination of all the proceedings to decide whether the case is wholly frivolous.@  Id. at 80.  This we have done, and we conclude that the appeals are wholly frivolous and that no error appears therein.  See Stafford, 813 S.W.2d at 511.

Although appellant=s counsel concedes that the appeals are frivolous because no error of law has been found, he asserts a separate claim for relief.  Counsel alleges in his brief:

Counsel herein may have, however, found error in the amended judgment of the court.  This error will not require a reversal, but may affect the appellant=s eligibility for Parole.  On August 14, 2001 the court signed and entered of record the judgment in appellant=s case.  In the August 14, 2001 judgment no affirmative finding of a deadly weapon was found.  However, on September 10, 2001 the court amended the judgment nunc pro tunc and added an affirmative finding to the use of a deadly weapon.  The affirmative finding by the trial judge that a deadly weapon was used in the commission of the instant offense should be stricken from the judgment because appellant had no notice that the State would seek such a finding. (All citations omitted.)

Having carefully examined the record, we agree, and for the reasons stated by counsel, we REFORM the judgments of the trial court to delete the affirmative finding of a deadly weapon.  Ex parte Patterson, 740 S.W.2d 766 (Tex. Crim. App. 1987); Perry v. State, 744 S.W.2d 632 (Tex. App.BHouston [1^st Dist.] 1987, no pet.).  In all other respects, the judgments are AFFIRMED.

NOAH KENNEDY

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 7th day of November, 2002.

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^[1]Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).