Eric Francis Long v. State

• Court: Court of Appeals of Texas
• Decided: July 26, 2007
• Docket: 07-07-00063-CR
• Status: Published

Opinion

NO. 07-07-0063-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JULY 26, 2007

______________________________

ERIC FRANCIS LONG, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 264^TH DISTRICT COURT OF BELL COUNTY;

NO. 59098; HONORABLE MARTHA J. TRUDO, JUDGE _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant, Eric Francis Long, appeals his conviction for possession of a controlled substance over 1 gram but less than 4 grams and sentence of six years incarceration in the Institutional Division of the Texas Department of Criminal Justice. Appellant's counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Gainous v. State, 436 S.W.2d 137, 138 (Tex.Crim.App. 1969). We affirm.

Appellant plead guilty to the offense of possession of a control substance over 1 gram but less than 4 grams without a plea bargain. After receiving the plea, the trial court received the pre-sentence investigation report and sentenced appellant to six years incarceration. There were no pre-trial motions heard by the court prior to the plea being entered.

Appellant's counsel has filed a brief, in compliance with Anders and Gainous, stating that he has diligently reviewed the appellate record and applicable law and is of the opinion that the record reflects no reversible error upon which an appeal can arguably be predicated. Counsel thus concludes that the appeal is frivolous. Counsel's brief presents a summation of the procedural history of the case and discusses why, under the controlling authorities, there is no reversible error in the trial court proceedings and judgment. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978).

Counsel has attached an exhibit showing that a copy of the Anders brief and motion to withdraw have been forwarded to appellant and that counsel has appropriately advised appellant of his right to review the record and file a pro se response to counsel's motion and brief. The clerk of this court has also advised appellant by letter of his right to file a response to counsel's brief. Appellant has not filed a response.

We have made an independent examination of the record to determine whether there are any non-frivolous grounds upon which an appeal could arguably be founded. See Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such grounds.

Appellant's counsel has moved for leave to withdraw. See Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.-Waco 1994, writ ref'd). We carried the motion for consideration with the merits of the appeal. Having considered the merits and finding no reversible error, appellant's counsel's motion to withdraw is granted ⁽¹⁾ and the trial court's judgment is affirmed.

Mackey K. Hancock

Justice

Do not publish.

1. In granting counsel's motion to withdraw, however, we remind counsel to insure that he has complied with the "educational" duty to inform appellant of his right to file a pro se petition for discretionary review in the Court of Criminal Appeals. Ex parte Owens, 206 S.W.3d 670 (Tex.Crim.App. 2006).