MacLorio Fierro v. State

• Court: Court of Appeals of Texas
• Decided: July 27, 2001
• Docket: 07-99-00504-CR
• Status: Published

Opinion

NO. 07-99-0504-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JULY 27, 2001

______________________________

MACLORIO FIERRO,

Appellant

V.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 242 ND DISTRICT COURT OF HALE COUNTY;

NO. B12355-9604; HON. ED SELF, PRESIDING

_______________________________

Before QUINN, REAVIS and JOHNSON, JJ.

Maclorio Fierro (appellant) appeals his felony conviction for driving while intoxicated.  Appellant pled guilty to the offense charged in the indictment.  The trial court initially placed him on community supervision.  The State subsequently moved to revoke appellant’s community supervision.  Appellant plead true to the allegations and signed a stipulation of the evidence.  The trial court granted the motion and sentenced  him to five years in prison, a term less than the ten years initially assessed at the time of the plea.  Thereafter, appellant timely moved for a new trial and filed his notice of appeal.     

Appellant’s appointed counsel filed an Anders ^{(footnote: 1)} brief, representing to us that he believed the appeal to be meritless.  So too did he move to withdraw.   Appellant was informed by this Court, via letter dated May 17, 2000, of his right to review the record and file a pro se brief by July 3, 2000.   To date, appellant has failed to file a response.

In his Anders brief, appellant’s counsel explained why he concluded that no arguable basis for appeal existed.  He, however, did raise two possible areas for argument.  The first involved whether the trial court abused its discretion by sentencing appellant to prison after receiving information of appellant’s extreme poor health and the second, whether the punishment was cruel and unusual.  In addressing each, counsel explained that no authority existed to support either ground; thus, they were meritless. ^{(footnote: 2)}  

After conducting an independent review of the record and legal authority to assess the accuracy of counsel’s representation, see Stafford v. State , 813 S.W.2d 503 ( Tex. Crim. App. 1991) (requiring same), we too find no arguable error.  Accordingly, appellate counsel’s motion to withdraw is granted and the judgment is affirmed.

                                               Per Curiam

Do not publish.  

FOOTNOTES

1:

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

2:

Additionally, neither contention was asserted before the trial court.  So, they were waived.   Tex. R. App. Proc. 33.1(a).