James E. Andrews v. State

• Court: Court of Appeals of Texas
• Decided: April 16, 2009
• Docket: 02-08-00247-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 2-08-247-CR

JAMES E. ANDREWS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION 1

Introduction

Appellant James E. Andrews appeals his conviction for assault of a public

servant, a crime that carries a punishment range of two to ten years’

confinement. See Tex. Penal Code Ann. § 12.34(a) (Vernon 2003),

§ 22.01(a)(1), (b)(1) (Vernon Supp. 2008). We affirm his conviction, and we

grant his appellate counsel’s motion to withdraw on the basis of counsel’s

1 … See Tex. R. App. P. 47.4. Anders brief. See Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct.

1396, 1400 (1967).

Background Facts

In August 2004, a Tarrant County grand jury indicted appellant for

striking a Fort Worth police officer. After the trial court appointed counsel for

appellant and the State announced that it was ready for trial, appellant received

admonishments from the trial court and pled guilty. The trial court deferred its

adjudication of appellant’s guilt, and it placed him on eight years’ community

supervision. The conditions of appellant’s community supervision required him

to (among other acts) commit no further offenses and avoid using illegal drugs.

In August 2005, the State filed a petition to proceed to the adjudication

of appellant’s guilt; in response, the trial court modified the terms of his

community supervision. The trial court changed such terms again in November

2005, December 2006, and November 2007.

In June 2008, the State filed a second petition to proceed to adjudication.

In that petition, the State alleged that appellant violated the conditions of his

community supervision by using cocaine, submitting diluted urine samples while

being tested for drug use, and failing to report to his probation department.

In July 2008, appellant waived certain constitutional and statutory rights, and

2 he entered open pleas of true to each of the State’s allegations. 2 On July 11,

2008, after appellant rejected a plea bargain offer of three years’ confinement

and the State recommended to the trial court in writing that appellant receive

five years’ confinement, the trial court found appellant guilty, and it sentenced

him to eight years’ confinement. That same day, appellant filed his pro se

notice of this appeal.

In December 2008, appellant’s appointed counsel filed a motion to

withdraw from his representation of appellant, contending that appellant’s

appeal is frivolous; counsel concurrently filed a brief that satisfies the

requirements of Anders by presenting a professional evaluation of the record

demonstrating why there are no arguable grounds for relief. See Anders, 386

U.S. at 744–45, 87 S. Ct. at 1400; In re Schulman, 252 S.W.3d 403, 406–12

(Tex. Crim. App. 2008). We sent appellant a letter notifying him of his

counsel’s motion and informing him of his right to file a pro se appellate brief.

We have not received any brief from appellant, nor have we received any

communication from him indicating that he desires to file such a brief. 3

2 … While entering his pleas of true, appellant affirmed that he understood that the trial court could set his punishment “anywhere within the range of punishment prescribed by law” for his offense. 3 … We also have not received a brief from the State.

3 Our Duties under Anders

As the reviewing court, we must conduct an independent evaluation of

the record to determine whether counsel is correct in concluding that the appeal

is frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.

1991); Mays v. State, 904 S.W.2d 920, 923 (Tex. App.—Fort Worth 1995, no

pet.). Only then may we grant counsel’s motion to withdraw. See Penson v.

Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).

We have carefully reviewed the record and counsel’s Anders brief.

We agree with counsel that this appeal is wholly frivolous and that it is without

merit. We find nothing in the record that might arguably support the appeal.4

See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005).

Therefore, we grant counsel’s motion to withdraw, and we affirm the trial

court’s judgment.

TERRIE LIVINGSTON JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: April 16, 2009

4 … We note that appellant’s pleas of true to the State’s allegations were sufficient to support the revocation of his community supervision. See Rincon v. State, 615 S.W.2d 746, 747 (Tex. Crim. App. [Panel Op.] 1981). We also note that, as indicated above, the trial court’s sentence was within the statutory punishment range for appellant’s assault conviction.