Tommy Hardeman v. State

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-12-00714-CR

Tommy HARDEMAN, Appellant

v. The STATE of The STATE of Texas, Appellee

From the 390th District Court, Travis County, Texas Trial Court No. D-1-DC-12-201869 The Honorable Julie H. Kocurek, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice

Delivered and Filed: October 2, 2013

MOTION TO WITHDRAW GRANTED; AFFIRMED

Appellant Tommy Hardeman entered an open plea of guilty to the offense of evading arrest

and was found guilty based on the plea. However, Hardeman pled not true to the numerous

enhancement allegations included in the indictment. At the punishment phase, the State presented

evidence of Hardeman’s numerous prior convictions, the basis for the enhancement allegations.

The trial court found certain enhancement allegations true and sentenced Hardeman to forty-five

years confinement in the Texas Department of Criminal Justice–Institutional Division. Hardeman

then perfected this appeal. 04-12-00714-CR

Hardeman’s court-appointed appellate attorney filed a motion to withdraw and a brief in

which he raises no arguable points of error and concludes this appeal is without merit. The brief

meets the requirements of Anders v. California, 386 U.S. 738 (1967), High v. State, 573 S.W.2d

807 (Tex. Crim. App. 1978), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969).

Counsel provided proof Hardeman was given a copy of the brief and motion to withdraw and was

informed of his right to review the record and file his own brief. Hardeman filed a brief on his

own behalf in which he alleges: (1) the trial court erred and violated his due process rights “by

failing to keep terms of stipulated agreement;” (2) the trial court failed to properly admonish him

prior to accepting his plea, and accepted the plea in violation of section 26.13(b) of the Texas Code

of Criminal Procedure; (3) the trial court erred in holding a hearing on the State’s motion for entry

of a nunc pro tunc judgment without allowing appellant to be represented by counsel; and (4) the

trial court erred when it sentenced him in excess of the range of punishment “agreed to by his plea

of guilty” to evading arrest.

When an Anders brief and a subsequent pro se brief are filed, we must review the entire

record and determine (1) the appeal is without merit and issue an opinion explaining there is no

reversible error, or (2) there are arguable grounds for appeal and issue an opinion remanding the

cause to the trial court for appointment of new appellate counsel. Garner v. State, 300 S.W.3d

763, 766 (Tex. Crim. App. 2009) (citing Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim.

App. 2005) (holding court of appeals may address merits of issues raised by pro se only after any

arguable grounds have been briefed by new appointed counsel)).

We have carefully reviewed the record, counsel’s brief, Hardeman’s brief, and the State’s

responsive brief, and find no reversible error and agree with counsel the appeal is without merit.

See id. We therefore grant the motion to withdraw filed by Hardeman’s appointed counsel and

affirm the trial court’s judgment. See id.; Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.—San -2- 04-12-00714-CR

Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996,

no pet.).

No substitute counsel will be appointed. Should Hardeman wish to seek further review of

this case in the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition

for discretionary review or file a pro se petition for discretionary review. Any petition for

discretionary review must be filed within thirty days after either the day our judgment is rendered

or the day the last timely motion for rehearing or timely motion for en banc reconsideration is

overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be

filed with the clerk of the Texas Court of Criminal Appeals. See id. R. 68.3. Any petition for

discretionary review must comply with the requirements of Rule 68.4 of the Texas Rules of

Appellate Procedure. See id. R. 68.4.

Marialyn Barnard, Justice

Do Not Publish

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