Nicholas Adam Boyken v. State

• Court: Court of Appeals of Texas
• Decided: August 17, 2016
• Docket: 12-16-00052-CR
• Status: Published

Opinion

NO. 12-16-00052-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

NICHOLAS ADAM BOYKEN, § APPEAL FROM THE 114TH APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION PER CURIAM Nicholas Adam Boyken appeals his conviction for possession of a controlled substance. Appellant’s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm.

BACKGROUND Appellant was charged by indictment with possession of a controlled substance. He entered an open plea of “guilty” to the offense, and the matter proceeded to a bench trial on punishment. Appellant pleaded “true” to two felony enhancement paragraphs, and also admitted his guilt of an unadjudicated offense of engaging in organized criminal activity as permitted under penal code section 12.45. The trial court assessed his punishment at imprisonment for eighteen years. This appeal followed.

ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA Appellant’s counsel filed a brief in compliance with Anders v. California and Gainous v. State. Appellant’s counsel relates that he has reviewed the appellate record and found no reversible error or jurisdictional defects. In compliance with High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978), counsel’s brief contains a thorough professional evaluation of the record demonstrating why there are no arguable grounds to be advanced.1 We have considered counsel’s brief and conducted our own independent review of the record. Id. at 811. We have found no reversible error.

CONCLUSION As required by Anders and Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991), Appellant’s counsel has moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the merits. Having done so, we agree with Appellant’s counsel that the appeal is wholly frivolous. Accordingly, we grant counsel’s motion for leave to withdraw and affirm the judgment of the trial court. Appellant’s counsel has a duty to, 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. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. Should Appellant wish to seek review of these cases by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review on his behalf or he must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of this court’s judgment or the date the last timely motion for rehearing was overruled by this court. See TEX. R. APP. P. 68.2(a). Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See In re Schulman, 252 S.W.3d at 408 n.22. Opinion delivered August 17, 2016. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

1 Counsel for Appellant certified in his brief that he provided Appellant with a copy of the brief. Appellant was given time to file his own brief in this cause. The time for filing such a brief has expired and no pro se brief has been filed.

2 COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 17, 2016

NICHOLAS ADAM BOYKEN, Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 114th District Court of Smith County, Texas (Tr.Ct.No. 114-1021-15)

THIS CAUSE came to be heard on the appellate record and brief filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.