David Earl Hargrove v. State

• Court: Court of Appeals of Texas
• Decided: July 14, 2005
• Docket: 13-03-00386-CR
• Status: Published

Opinion

                              NUMBER 13-03-386-CR

  13-03-387-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG 

DAVID EARL HARGROVE,                                                            Appellant,

v.

THE STATE OF TEXAS,                                                                 Appellee.

On appeal from the 262nd District Court of Harris County, Texas.

MEMORANDUM OPINION

         Before Chief Justice Valdez and Justices Hinojosa and Yañez

                            Memorandum Opinion by Justice Yañez

Pursuant to a plea agreement, appellant, David Earl Hargrove, pleaded guilty to the felony offenses of aggravated robbery^[1] and aggravated sexual assault.^[2]  The trial court found appellant guilty and, in accordance with the agreement, sentenced him to thirty-five years= confinement in the Institutional Division of the Texas Department of Criminal Justice.  Appellant=s counsel has filed a brief with this Court asserting there is no basis for appeal.^[3]  We agree, and affirm the trial court=s judgment.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court=s decision and the basic reasons for it.^[4]

In each case, the record contains the trial court=s amended certification that the case is a plea-bargain case, but that the trial court has given the defendant the right to appeal.^[5]

Anders Brief

According to counsel=s brief, he has reviewed the clerk=s record and reporter=s record and has concluded that appellant=s appeal is frivolous and without merit.^[6]  The brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal.^[7]  In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978), counsel has carefully discussed why, under controlling authority, there are no errors in the trial court=s judgment.  In the brief, appellant=s counsel states that he has informed appellant of his right to review the appellate record and to file a pro se brief.^[8]  The record contains appellant=s pro se brief, which was untimely received by this Court.^[9]

Upon receiving a Afrivolous appeal@ brief, the appellate courts must conduct Aa full examination of all the proceedings to decide whether the case is wholly frivolous.@^[10]  We have carefully reviewed the appellate record and counsel=s brief.  We agree with appellant=s counsel that the appeal is wholly frivolous and without merit.  

                                                Motion to Withdraw

An appellate court may grant counsel=s motion to withdraw filed in connection with an Anders brief.^[11]  We note that counsel has not filed a motion to withdraw in this case.  If counsel wishes to file a motion to withdraw, he must file the motion no later than fifteen days from the date of this opinion.

We order counsel to advise appellant promptly of the disposition of this case and the availability of discretionary review.^[12] 

We find nothing in the record that might arguably support this appeal.  The trial court=s judgment is AFFIRMED.                                      

_______________________

LINDA REYNA YAÑEZ,

Justice

Do not publish.                                             

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

Memorandum Opinion delivered and

filed this the 14th day of July, 2005.

---

^[1] See Tex. Pen. Code Ann. ' 29.03 (Vernon 2003).  Appellant pleaded guilty to aggravated robbery in appellate cause number 13-03-386-CR (trial court cause number 934132 in the 262nd District Court of Harris County).  

^[2] See Tex. Pen. Code Ann. ' 22.021 (Vernon Supp. 2004-05).  Appellant pleaded guilty to aggravated sexual assault  in appellate cause number 13-03-387-CR (trial court cause number 934131 in the 262nd District Court of Harris County).   

^[3] See Anders v. Californis, 386 U.S. 738 (1967).

^[4] See Tex. R. App. P. 47.4.

^[5] See Tex. R. App. P. 25.2(a)(2).

^[6] See Anders, 386 U.S. at 738.  

^[7] See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc).

^[8] See Sowels v. State, 45 S.W.3d 690, 693 (Tex. App.BWaco 2001, no pet.). 

^[9] Although this Court granted appellant several extensions of time in which to file his pro se brief, the brief was untimely received by this Court.  Out of an abundance of caution, we have reviewed appellant=s pro se brief and find both points raised in the brief (claims that he received ineffective assistance and that  limitations on claims of involuntariness in plea-bargain cases are unconstitutional) to be without merit. 

^[10] Penson v. Ohio, 488 U.S. 75, 80 (1988); see Garza v. State, 126 S.W.3d 312, 313 (Tex. App.BCorpus Christi 2004, no pet.). 

^[11] Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511 (noting that Anders brief should be filed with request for withdrawal from case). 

^[12] See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).