Albert Lee Leal, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: August 4, 2005
• Docket: 13-04-00104-CR
• Status: Published

Opinion

                                    NUMBER 13-04-104-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

ALBERT LEE LEAL, JR,                                                                   Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

                      On appeal from the 28^th District Court

                                        of Nueces County, Texas.

                                M E M O R A N D U M   O P I N I O N

     Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

      Opinion by Chief Justice Valdez

Appellant, Albert Leal, Jr., pled guilty to the offense of second-degree felony robbery.  See Tex. Pen. Code Ann. ' 29.02 (Vernon 2003).  A jury assessed appellant=s punishment at eleven years= imprisonment and a fine of $1000.  We affirm the judgment of the trial court. 

Anders Brief

Appellant=s counsel filed an Anders brief with this Court in which he concluded, after careful investigation, the appeal is frivolous and without merit.  See Anders v. California, 386 U.S. 738, 744 (1967).  The brief presents a professional evaluation showing why there is no basis to advance an appeal.  See Stafford v. State, 813 S.W.2d 503, 509‑10, 510 n.3 (Tex. Crim. App. 1991).  We conclude counsel's brief meets the requirements of Anders. See Anders, 386 U.S. at 744‑45; High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978).  Counsel also informed appellant that he had the right to file a pro se appellate brief and to review the record.  See McMahon v. State, 529 S.W.2d 771, 772 (Tex. Crim. App. 1975); Johnson v. State, 885 S.W.2d 641, 646 (Tex. App.BWaco 1994, pet. ref'd) (per curiam).  Over twelve months have passed since appellant was informed of his rights and given a copy of the record, and no pro se brief has been filed.

In the Anders brief, counsel raised the following potential ground for appeal: the jury=s punishment verdict was illegal, contrary to law, or amounted to cruel and unusual punishment for a youthful offender with no prior felony record.  To preserve a complaint of cruel and unusual punishment for appellate review, appellant must present to the court a timely request, objection, or motion stating the specific grounds for the ruling desired.  See Tex. R. App. P. 33.1; Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996).  The constitutional right to be free from cruel and unusual punishment may be waived by failure to object.  See Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.BCorpus Christi 1989, pet. ref'd).  The record reflects that appellant did not object to the sentence as violating his constitutional rights at the time it was announced, nor did he raise this argument in a post‑trial motion.  By failing to object in the trial court, appellant waived his complaint.

Even assuming appellant had properly preserved this issue and presented constitutional grounds for appellate review, we find no error in the imposition of this sentence.  We review a sentence imposed by the trial court for abuse of discretion. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). The general rule is that punishment falling within the applicable range prescribed by the legislature is not excessive, cruel or unusual, and will not be disturbed on appeal.  Id.; Morales v. State, 897 S.W.2d 424, 427 (Tex. App.BCorpus Christi 1995, pet. ref'd).  The punishment range for robbery is confinement for two to twenty years and an optional fine not to exceed $10,000.  See Tex. Pen. Code Ann. ' 12.33 (Vernon 2003).  Appellant's sentence and fine are within the statutory range and do not appear to be an extreme instance in which a sentence within the permissible range is nonetheless grossly disproportionate to the crime committed.  See Lockyer v. Andrade, 538 U.S. 63, 72-73 (2003); Ewing v. California, 538 U.S. 11, 30-31 (2003).  We conclude, therefore, that the trial court did not abuse its discretion in imposing the sentence.

Independent Review

Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous.  Penson v. Ohio, 488 U.S. 75, 80 (1988).  The record shows that appellant voluntarily pled guilty to the offense alleged in the indictment and waived his right to a jury trial. The judge properly administered all required admonishments.  See Tex. Code Crim. Proc. Ann. art 26.13 (Vernon Supp. 2004-05).  Appellant did not object to the sentence on any basis, and therefore waived his ability to challenge on appeal any error in the punishment phase.  See Tex. R. App. P. 33.1; Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). There is no evidence in the record of ineffective assistance of counsel, see Strickland v. Washington, 466 U.S. 668, 684 (1984), nor any other cognizable error.

We have reviewed the remainder of the entire record and find that the appeal is wholly frivolous.  See Stafford, 813 S.W.2d at 509.  Accordingly, we affirm the judgment of the trial court.

Motion to Withdraw

Counsel has requested to withdraw from further representation of appellant on this appeal.  An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief.  Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511.  We grant counsel's motion to withdraw and order him to notify appellant of the disposition of his appeal and the availability of discretionary review.  See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).

Conclusion

The judgment of the trial court is affirmed.                                                   

Rogelio Valdez,

Chief Justice

 Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 4^th day of August, 2005.