Douglas Hazzard v. State

• Court: Court of Appeals of Texas
• Decided: August 18, 2011
• Docket: 13-11-00017-CR
• Status: Published

Opinion

NUMBER 13-11-00017-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

DOUGLAS HAZZARD, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 94th District Court of Nueces County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Justice Garza Following a bench trial, the trial court found appellant, Douglas Hazzard, guilty of

family violence assault, a second-degree felony, enhanced by two prior felony

convictions. See TEX. PENAL CODE ANN. § 22.01 (West Supp. 2010); id. § 12.42 (West

Supp. 2010). The trial court sentenced appellant to twenty-five years’ imprisonment.

See id. § 12.42(d). We affirm the judgment as modified. I. ANDERS BRIEF

Appellant’s appellate counsel has filed a motion to withdraw and a brief in

support thereof in which he states that he has diligently reviewed the entire record and

has concluded that there is no reversible error. See Anders v. California, 386 U.S. 738

(1967); High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978).

Counsel has informed this Court that he has (1) examined the record and has found no

arguable grounds to advance on appeal, (2) served copies of the brief and motion to

withdraw on appellant, and (3) informed appellant of his right to review the record and to

file a pro se response.1 See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d

503, 510 n.3 (Tex. Crim. App. 1991). More than an adequate time has passed, and no

pro se response has been filed. See In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex.

Crim. App. 2008).

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488

U.S. 75, 80 (1988). We have reviewed the entire record and counsel’s brief, and find

that the appeal is wholly frivolous and without merit. See Bledsoe v. State, 178 S.W.3d

824, 827–28 (Tex. Crim. App. 2005) (―Due to the nature of Anders briefs, by indicating

in the opinion it considered the issues raised in the brief and reviewed the record for

reversible error but found none, the court of appeals met the requirements of Texas

1 The Texas Court of Criminal Appeals has held that ―the pro se response need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues.‖ In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)).

2 Rule of Appellate Procedure 47.1.‖); Stafford, 813 S.W.2d at 509. Accordingly, we

affirm the judgment of the trial court, as modified below.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s counsel has filed a motion to withdraw as

appellate counsel. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d

at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80 (Tex. App.—Dallas 1995,

no pet.) (―If an attorney believes the appeal is frivolous, he must withdraw from

representing the appellant. To withdraw from representation, the appointed attorney

must file a motion to withdraw accompanied by a brief showing the appellate court that

the appeal is frivolous.‖) (citations omitted)). We grant the motion to withdraw.

We order that counsel must, within five days of the date of this opinion, send a

copy of the opinion and judgment to appellant and advise him of his right to file a

petition for discretionary review.2 See TEX. R. APP. P. 48.4; see also In re Schulman,

252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

IV. MODIFICATION OF JUDGMENT

The trial court’s judgment mistakenly states that appellant pleaded ―guilty‖ to the

offense and ―true‖ to the State’s enhancement allegations. The reporter’s record

reflects, however, that appellant pleaded ―not guilty‖ to the charged offense and the

enhancement allegations. Because we have the necessary documents and evidence

2 No substitute counsel will be appointed. Should appellant wish to seek further review by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals. See id. at R. 68.3, 68.7. Any petition for discretionary review must comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See id. at R. 68.4.

3 for reformation, we modify the trial court’s judgment to reflect that appellant pleaded ―not

guilty‖ to the charged offense and the enhancement allegations. See TEX. R. APP. P.

43.2; Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993) (en banc).

DORI CONTRERAS GARZA Justice

Do not publish. TEX. R. APP. P. 47.2(b) Delivered and filed the 18th day of August 2011.