Doris Jean Williams, Johnnie June Campbell, and the Estate of Leavirta Austin v. Damon Hill, M.D.

• Court: Court of Appeals of Texas
• Decided: February 5, 2003
• Docket: 07-01-00374-CV
• Status: Published

Opinion

NO. 07-01-0374-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

FEBRUARY 5, 2003

______________________________

DORIS JEAN WILLIAMS, JOHNNIE JUNE CAMPBELL, AND THE ESTATE OF LEAVIRTA AUSTIN, DECEASED, APPELLANTS

V.

DAMON HILL, M.D., APPELLEE

_________________________________

FROM THE 237^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2000-509,771-A; HONORABLE SAM MEDINA, JUDGE

_______________________________

Before JOHNSON, C.J., REAVIS, J. and BOYD, S.J. ⁽¹⁾

MEMORANDUM OPINION

Appellants Doris Jean Williams, Johnnie June Campbell, and the Estate of Leavirta Austin, Deceased, filed a Motion to Voluntarily Dismiss Appeal on October 29, 2002, averring that they no longer wish to prosecute their appeal.

Without passing on the merits of the case, appellants' motion for voluntary dismissal is granted and the appeal is hereby dismissed. Tex. R. App. P. 42.2. Having dismissed the appeal at appellants' personal request, no motion for rehearing will be entertained and our mandate will issue forthwith.

Phil Johnson

Chief Justice

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

here is no error in the court's judgment. See High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978). Counsel has also shown that he sent a copy of the brief to Appellant and informed Appellant that, in counsel's view, the appeal is without merit. In addition, counsel has demonstrated that he notified Appellant of his right to review the record and file a pro se response if he desired to do so. The Clerk of this Court also advised Appellant by letter of his right to file a response to counsel's brief. Appellant did not file a response. Neither did the State favor us with a brief.

As an arguable ground, counsel asserts the trial court's inspection of a presentence investigation report prepared prior to Appellant being adjudicated guilty could have prejudiced the court. Counsel then points out that article 42.12, § 5(b) of the Texas Code of Criminal Procedure precludes review of the trial court's decision to adjudicate guilt. See Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App. 1999). Counsel also acknowledges that error, if any, during the punishment phase, was not preserved for review. See Tex. R. App. P. 33.1(a)(1)(A); Hardeman v. State, 1 S.W.3d 689, 690 (Tex.Crim.App. 1999).

We have independently examined the entire record to determine whether there are any non-frivolous grounds which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991). We have found no such grounds. After reviewing the record and counsel's brief, we agree with counsel that the appeal is frivolous. See Bledsoe v. State, 178 S.W.3d 824 (Tex.Cr.App. 2005).

Accordingly, counsel's motion to withdraw is granted and the trial court's judgment is affirmed.

Patrick A. Pirtle

Justice

Do not publish.

1. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

2. Counsel sets forth a "ground of error that would be better suited for a writ of habeas corpus proceeding."