Vincent Dwight McCray v. State of Texas

• Court: Court of Appeals of Texas
• Decided: October 4, 2001
• Docket: 07-00-00558-CR
• Status: Published

Opinion

NO. 07-00-0556-CR NO. 07-00-0557-CR NO. 07-00-0558-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

OCTOBER 4, 2001

______________________________

VINCENT DWIGHT MCCRAY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 64th DISTRICT COURT OF SWISHER COUNTY;

NOS. B3255-99-07CR, B3256-99-07-CR, B3257-99-07CR; HONORABLE JACK R. MILLER, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

In these three companion cases, after a plea of nolo contendere and in pursuance

of a plea bargain, in cause number 07-00-0558-CR, appellant was assessed a punishment

of three years confinement in the Institutional Division of the Department of Criminal

Justice. As an additional part of the plea bargain, the charges in our cause numbers 07- 00-0556-CR and 07-00-0557-CR were considered in the assessment of the sentence in

cause number 07-00-0558-CR, and the prosecutions in those two cases were dismissed.

Even so, appellant has appealed all three of the cases. Finding no reversible error, we

affirm the trial court’s judgment in each case.

In a joint brief, applicable to each case, appointed counsel has certified that after

diligently searching the record, he is convinced there is no reversible error and these

appeals are without merit. See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396,

18 L.Ed.2d 493 (1967), and Gainous v. State, 436 S.W.2d 137, 138 (Tex.Crim.App. 1969).

With his brief, counsel has filed a motion to withdraw and attached a copy of a letter

to appellant informing him of his request to withdraw and of appellant’s right to file briefs

in his own behalf. Upon receipt of counsel’s brief and motion, the clerk of this court

notified appellant of his right to respond to the brief and motion, if he desired to do so, and

that he must file such a response or brief not later than June 15, 2001. To date, appellant

has not filed a response, a pro se brief, or a request for extension of time within which to

file a pro se brief.

In considering requests to withdraw such as this, we face two interrelated tasks.

We must first satisfy ourselves that the attorney has provided the client with a diligent and

thorough search of the record for any arguable claim that might support the client’s appeal.

Then, we must determine if counsel has correctly concluded the appeal is frivolous. See

2 McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442, 108 S.Ct. 1895, 100 L.Ed.2d

440 (1988), and High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978).

In his brief, counsel presents one point that might arguably form a basis for appeal;

namely, whether there is legally and factually sufficient evidence of the element of scienter

in the alleged delivery of the controlled substance that gave rise to the prosecution in 07-

00-0558-CR. However, in the course of his discussion, counsel points out that the record

shows appellant acknowledged that he understood the charges against him, the range of

punishment applicable to each offense charged, that no one had forced him to enter his

pleas to the offenses and violations charged, and that he understood the plea bargain

when it was gone over with him by the district attorney. Appellant also averred that he was

entering his pleas because he was guilty of the violations and for no other reason.

Appellant additionally testified he understood that because of his stipulations of

evidence, the court could find him guilty based solely upon his plea of nolo contendere and

the stipulations of evidence he made. He admitted he knew he had a right to be tried by

a jury and that by signing a waiver of jury trial he was giving up that right. He also

admitted that he understood that if the trial court accepted the plea bargain and set his

punishment at anything equal to or less than the plea bargain agreement, he could not

appeal the case except that he might appeal rulings on pretrial motions if he had filed any

3 such motions.1 Appellant’s trial attorney testified that, in his opinion, appellant was

competent to stand trial.

The standards by which we review sufficiency challenges are by now so well

established that it is not necessary to recite them in detail. Suffice it to say that the correct

standard for our review of legal sufficiency challenges is that set out in Jackson v. Virginia,

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), namely, “whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Id. at 319. The

standard by which factual sufficiency challenges are measured is that explicated in Clewis

v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996). That is, after viewing all the evidence

without the prism of in the light most favorable to the prosecution, the verdict of the

factfinder is so against the overwhelming weight of the evidence as to be clearly wrong

and unjust. Id. at 129.

Our examination of the record convinces us that the evidence, coupled with

appellant’s plea, is amply sufficient to sustain the trial court’s guilt finding. That

examination also establishes that appellant’s attorney is entitled to withdraw, and his

motion to do so is granted. Accordingly, appellant’s issue is overruled and the judgments

of the trial court are affirmed.

John T. Boyd

1 No such pretrial motions appear in the record before us.

4 Chief Justice Do not publish.