Pamela Jo Brown v. State

Opinion

NO. 07-10-00521-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

AUGUST 16, 2011

PAMELA JO BROWN, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

NO. 61,311-D; HONORABLE DON R. EMERSON, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant Pamela Jo Brown entered an open plea of guilty to the charge of theft

of property under $1,500, third offense.1 She also plead true to two prior felony

convictions enhancing the punishment to a third-degree felony.2 The court assessed

1 See Tex. Penal Code Ann. § 31.03(e)(4)(D) (West 2011) (providing theft of property valued at less than $1,500 is a state jail felony if the defendant has two or more prior final convictions of any grade of theft). 2 On a showing at the trial of a state jail felony that the defendant has two prior final convictions for state jail felonies, on conviction the defendant shall be punished for a third-degree felony. Tex. Penal Code Ann. § 12.42(a)(1) (West 2011). The range of punishment for an individual adjudged guilty of a third-degree felony is imprisonment for punishment at eight years confinement in prison. Her court-appointed appellate counsel

has filed a motion to withdraw supported by an Anders3 brief. We will grant counsel’s

motion to withdraw and affirm the judgment of the trial court.

Besides pleading guilty in open court to the charged offense and true to the

enhancements, appellant signed a writing waiving the right to trial by jury, and the

appearance, confrontation, and cross-examination of witnesses, and consenting to oral

and written stipulations of evidence. Appellant also executed a “judicial confession”

stating she “committed each and every allegation” contained in the indictment. The

State introduced evidence of prior convictions including two thefts and those alleged by

the indictment for enhancement of punishment.

At the punishment phase, on direct examination, appellant testified “I’m guilty” of

the indicted offense. She then presented her case-in-chief. It centered on a request for

probation because of her parents’ disabilities and their resulting need of her assistance.

On cross-examination, appellant agreed she had prior convictions including theft,

forgery, possession of a controlled substance, possession of drug paraphernalia, and

criminal trespass of a habitation.

After the parties closed, the court found appellant guilty and pronounced

sentence. This appeal followed.

2 to 10 years in the Texas Department of Criminal Justice and a fine not exceeding $10,000 may also be assessed. Tex. Penal Code Ann. § 12.34(a)(b) (West 2011). 3 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); see In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008) (orig. proceeding).

2 Appellant’s appointed appellate counsel has filed a motion to withdraw supported

by an Anders brief. In counsel’s opinion, nothing in the record establishes reversible

error. The brief reviews the record and the evidence presented at the hearing. Counsel

discusses three grounds of potential error but concludes none constitutes reversible

error. Correspondence from counsel to appellant indicates counsel supplied appellant a

copy of the Anders brief and counsel’s motion to withdraw. The correspondence also

points out the right of appellant to review the record and file a pro se response and her

right to file a pro se petition for discretionary review in the Court of Criminal Appeals

should she receive an adverse decision by this court. By letter, this court also notified

appellant of her opportunity to submit a response to the Anders brief and motion to

withdraw filed by her counsel. Appellant did not file a response.

In conformity with the standards set out by the United States Supreme Court, we

will not rule on the motion to withdraw until we have independently examined the record

in each matter. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.--San Antonio 1997, no

pet.). If this court determines the appeal arguably has merit, we will remand it to the

trial court for appointment of new counsel. Stafford v. State, 813 S.W.2d 503, 511

(Tex.Crim.App.1991). We have reviewed the entire record to determine whether there

are any arguable grounds which might support an appeal. See Penson v. Ohio, 488

U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824

(Tex.Crim.App. 2005). We have found no such arguable grounds supporting a claim of

reversible error, and agree with counsel that the appeal is frivolous.

3 Accordingly, we grant counsel’s motion to withdraw4 and affirm the judgment of

the trial court.

James T. Campbell Justice

Do not publish.

4 Counsel shall, within five days after the opinion is handed down, send his client a copy of the opinion and judgment, along with notification of the defendant’s right to file a pro se petition for discretionary review. Tex. R. App. P. 48.4. 4