Charley Dee Phillips, Sr. v. State of Texas

• Court: Court of Appeals of Texas
• Decided: April 1, 2010
• Docket: 11-09-00067-CR
• Status: Published

Opinion

Opinion filed April 1, 2010

                                                                        In The

    Eleventh Court of Appeals

                                                                  ___________

                                                           No. 11-09-00067-CR

                                                    __________

                            CHARLEY DEE PHILLIPS, SR., Appellant

                                                             V.

                                       STATE OF TEXAS, Appellee

                                          On Appeal from the 42nd District Court

                                                          Taylor County, Texas

                                                  Trial Court Cause No. 23201A

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

The jury convicted Charley Dee Phillips, Sr. of aggravated assault.   Appellant entered a plea of true to both enhancement allegations, and the trial court assessed his punishment at confinement for thirty years.  We dismiss.

Appellant=s court-appointed counsel has filed a motion to withdraw.  The motion is supported by a brief in which counsel professionally and conscientiously examines the record and applicable law and states that she has concluded that the appeal is frivolous.

Counsel presents one arguable issue on appeal.  Counsel examines whether trial counsel was ineffective for failing to call appellant to explain the situation.  As counsel notes, the decision whether to testify is the defendant=s and is made with the help of trial counsel.  Appellant choosing not to testify is reasonable trial strategy.  The record does not support a claim of ineffective assistance of counsel at trial.  Wiggins v. Smith, 539 U.S. 510, 520 (2003); Strickland v. Washington, 466 U.S. 668, 690 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999).   The arguable issue is overruled.

Counsel has provided appellant with a copy of the brief and advised appellant of his right to review the record and file a response to counsel=s brief.  A response has been filed.  Court-appointed counsel has complied with the requirements of Anders v. California, 386 U.S. 738 (1967); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); and Eaden v. State, 161 S.W.3d 173 (Tex. App.CEastland 2005, no pet.).

In his response, appellant contends that he was denied due process and due course of law in the trial court because his trial counsel provided ineffective assistance of counsel and that the grand jury erred in the indictment.  We note that the Texas Court of Criminal Appeals stated in Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005), that the court of appeals is to review appellant=s pro se claims and examine the record in order to determine whether the record reflects no reversible error and the appeal should be dismissed or whether arguable grounds exist and new counsel should be appointed.  We have complied with the requirements in Bledsoe and have found no reversible error.

Following the procedures outlined in Anders, we have independently reviewed the record, and we agree that the appeal is without merit.  We note that counsel has the responsibility to advise appellant that he may file a petition for discretionary review by the Texas Court of Criminal Appeals.  Ex parte Owens, 206 S.W.3d 670 (Tex. Crim. App. 2006).  Likewise, this court advises appellant that he may file a petition for discretionary review pursuant to Tex. R. App. P. 66.  Black v. State,  217 S.W.3d 687 (Tex. App.CEastland 2007, no pet.).

The motion to withdraw is granted, and the appeal is dismissed.

April 1, 2010                                                                          PER CURIAM          

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.