Brittany L. Franklin v. State

• Court: Court of Appeals of Texas
• Decided: January 14, 2015
• Docket: 09-13-00528-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00528-CR ____________________

BRITTANY L. FRANKLIN, Appellant

V.

THE STATE OF TEXAS, Appellee _______________________________________________________ ______________

On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 12-15169 ________________________________________________________ _____________

MEMORANDUM OPINION In this appeal, the brief filed by Brittany L. Franklin’s court-appointed

appellate counsel contends that no arguable grounds can be advanced in Franklin’s

appeal. The judgment being appealed reflects that Franklin was convicted of felony

theft. Based on our review of the record, we agree with Franklin’s counsel that no

arguable issues exist that would support reversing the judgment being appealed.

See Anders v. California, 386 U.S. 738, 744 (1967).

Franklin pled guilty to felony theft, which was a Class A misdemeanor

enhanced by two prior thefts. See Tex. Penal Code Ann. § 31.03(a), (e)(4)(D) 1 (West Supp. 2014) (penalizing a defendant convicted of two or more prior thefts

who steals property valued at less than $1,500 as a state jail felony). At the hearing

on Franklin’s plea, the trial court deferred the decision to adjudicate Franklin’s

guilt, and then placed her on community supervision for a period of three years.

Several months later, the State filed a motion asking the trial court to revoke its

decision placing Franklin on community supervision. During the hearing on the

State’s motion, Franklin pled “[t]rue” to violating the trial court’s order by

committing three new offenses, and the trial court found in the State’s favor on its

allegations that Franklin had committed three new offenses. At the conclusion of

the revocation hearing, the trial court granted the State’s motion to revoke,

adjudicated Franklin’s guilt, and gave Franklin a sentence of two years

imprisonment, to be served in a state jail.

On appeal, Franklin’s counsel filed a brief presenting counsel’s professional

evaluation of the record; in the brief, Franklin’s counsel concludes that Franklin’s

appeal is frivolous. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807

(Tex. Crim. App. 1978). We granted an extension of time to allow Franklin to file

a pro se brief. Franklin filed a response and a motion.1

1 Claiming she is eligible to have her sentence suspended under section 6(a) of article 42.12 of the Texas Code of Criminal Procedure, Franklin filed a motion with the court of appeals asking that we reduce her sentence by four months. See Tex. Code Crim. Proc. Ann. art. 42.12 § 6(a) (West Supp. 2014) (providing for 2 After reviewing the appellate record, the Anders brief filed by Franklin’s

counsel, and Franklin’s pro se response, we agree with counsel’s conclusion that

any appeal would be frivolous. Consequently, we need not order the appointment

of new counsel to re-brief Franklin’s appeal. Cf. Stafford v. State, 813 S.W.2d 503,

511 (Tex. Crim. App. 1991). We affirm the trial court’s judgment. 2

AFFIRMED.

________________________________ HOLLIS HORTON Justice

Submitted on December 8, 2014 Opinion Delivered January 14, 2015 Do Not Publish

Before Kreger, Horton, and Johnson, JJ.

shock probation in cases other than state jail felonies).We do not have jurisdiction to grant Franklin’s request, as section 6 of article 42.12 provides that the trial court has jurisdiction over the motion that she filed requesting that her sentence be suspended. Id. Moreover, section 6 of article 42.12 does not apply in cases where the defendant was convicted of a state jail felony. Id. 2 Franklin may challenge our decision in this case by filing a petition for discretionary review. See Tex. R. App. P. 68. 3