Demond Barrett v. State

• Court: Court of Appeals of Texas
• Decided: August 12, 2004
• Docket: 13-03-00389-CR
• Status: Published

Opinion

NUMBER 13-03-389-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DEMOND BARRETT,                                                                  Appellant,

v.

THE STATE OF TEXAS,                                                     Appellee.

On appeal from the 23rd District Court of Brazoria County, Texas.

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Garza

          Appellant, Demond Barrett, was charged with assault on a public servant. See Tex. Pen. Code Ann. § 22.01(b)(1) (Vernon Supp. 2004). Appellant pled guilty to the charge and true to a prior offense used for enhancement of the sentence and waived his right to a jury trial. The trial judge assessed punishment at five years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. We affirm.                  Appellant’s counsel has filed a brief and motion to withdraw in which she concludes that appellant has no non-frivolous grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel certifies that she diligently reviewed the complete record and researched the law applicable to the facts and issues contained therein, and she concludes that she was unable to find any error which would arguably require a reversal of the trial court’s sentence. See id.; see also High v. State, 573 S.W.2d 807, 812-13 (Tex. Crim. App. 1978). Counsel has served a copy of this brief on appellant, accompanied by a copy of the record and a letter informing appellant of his right to file a pro se brief on his own behalf. See Anders, 386 U.S. at 744; see also Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). More than thirty days have passed and no pro se brief has been filed. See Tex. R. App. P. 38.6.  

          An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced. High, 573 S.W.2d at 812. Although counsel’s brief does not advance any arguable grounds of error, it does present a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); High, 573 S.W.2d at 812. We conclude counsel’s brief meets the requirements of Anders. See Anders, 386 U.S. at 744; High, 573 S.W.2d at 812.

          Upon receiving a “frivolous appeal” brief, appellate courts must conduct a full examination of all the proceedings to decide whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). Accordingly, we independently review the record for error.

          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). 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). Appellant’s sentence of five years’ imprisonment was within the legal range of punishment.

          Accordingly, after careful review of the record, we agree with counsel that the appeal is wholly frivolous. The judgment of the trial court is affirmed. In accordance with Anders, appellant’s attorney has asked permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744. We grant her motion to withdraw. We further order counsel to notify appellant of the disposition of this appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).                                                     

                                                                                      _______________________

                                                                                      DORI CONTRERAS GARZA,

                                                                                      Justice

Do not publish.

         Tex.R.App.P. 47.2(b)

         Memorandum Opinion delivered

         and filed this the 12^th day of August, 2004.