Roy Edgar Wesley v. State

Opinion

Opinion issued June 25, 2013

In The Court of Appeals For The First District of Texas

NO. 01-11-00448-CR ____________

ROY EDGAR WESLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court Harris County, Texas Trial Court Cause No. 1272842

MEMORANDUM OPINION

Appellant, Roy Edgar Wesley, pleaded guilty to the offense of aggravated

assault with a deadly weapon, without an agreed recommendation from the State

regarding punishment. See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). The

trial court found appellant guilty and assessed punishment at 10 years’ confinement. The trial court certified that this is not a plea bargain case and that appellant has the

right to appeal. Appellant timely filed a notice of appeal.

Appellant’s appointed counsel on appeal has filed a motion to withdraw,

along with an Anders brief stating that the record presents no reversible error and

therefore the appeal is without merit and is frivolous. See Anders v. California, 386

U.S. 738, 87 S. Ct. 1396 (1967).

Counsel’s brief meets the Anders requirements by presenting a professional

evaluation of the record and supplying us with references to the record and legal

authority. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State,

573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has

thoroughly reviewed the record and that he is unable to advance any grounds of

error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell

v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

In his pro se response, appellant argues that the complainant committed

aggravated assault against him, that he acted in self-defense, and that he only

intended to scare the complainant and did not intend to actually shoot the

complainant. He also argues that he did not know that he could be sentenced to 10

years’ imprisonment. Further, he argues that he was not indicted on the date

provided in counsel’s brief and that he could not have shot the complainant on the

2 date stated in counsel’s brief. Finally, he argues that he was told he could withdraw

his guilty plea, but the trial judge denied his motion to withdraw the plea.

We have independently reviewed the entire record in this appeal, and we

conclude that no reversible error exists in the record, that there are no arguable

grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S.

at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—

determines, after full examination of proceedings, whether appeal is wholly

frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009)

(reviewing court must determine whether arguable grounds for review exist);

Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (same); Mitchell,

193 S.W.3d at 155 (reviewing court determines whether arguable grounds exist by

reviewing entire record). An appellant may challenge a holding that there are no

arguable grounds for appeal by filing a petition for discretionary review in the Court

of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.

We affirm the judgment of the trial court and grant counsel’s motion to

withdraw.1 Attorney Kenneth McCoy must immediately send the notice required

1 Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). 3 by Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice with the

Clerk of this Court. See TEX. R. APP. P. 6.5(c).

PER CURIAM

Panel consists of Justices Keyes, Sharp, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).