Jameson Wayne Bearden v. State ( 2007 )


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  • Opinion filed June 21, 2007

     

     

    Opinion filed June 21, 2007

     

     

     

     

     

     

                                                                            In The

                                                                                 

        Eleventh Court of Appeals

                                                                       __________

     

                                                              No. 11-06-00297-CR

                                                        __________

     

                                JAMESON WAYNE BEARDEN, Appellant

     

                                                                 V.

     

                                            STATE OF TEXAS, Appellee

     

      

     

                                            On Appeal from the 132nd District Court

     

                                                              Scurry County, Texas

     

                                                         Trial Court Cause No. 8945

     

      

     

                                                                       O P I N I O N


    This is an appeal from a judgment adjudicating guilt.  Jameson Wayne Beardon originally entered a plea of guilty to the state jail felony offense of theft.  The plea bargain agreement reached stated that punishment would be confinement for two years in a state jail facility probated for one year, a fine of $500, and the deferment of the adjudication of guilt.  Pursuant to the plea bargain agreement, the trial court deferred the adjudication of guilt, placed appellant on community supervision for one year, and assessed a $500 fine.  At the hearing on the State=s motion to adjudicate, appellant entered pleas of true to six allegations that he violated the terms and conditions of his community supervision. The trial court found that appellant had violated the terms and conditions of his community supervision, revoked his community supervision, adjudicated his guilt, and imposed a sentence of confinement for two years in a state jail facility.  We affirm.

    Appellant=s court-appointed counsel has filed a motion to withdraw.  The motion is supported by a brief in which counsel professionally and conscientiously examines the record and applicable law and states that he has concluded that the appeal is frivolous.  Counsel presents one arguable issue.

    In his sole arguable issue, counsel suggests that the trial court erred in assessing the maximum sentence available for the offense.  Counsel relies on appellant=s testimony that he was unable to comply with the terms and conditions of his community supervision because he had bipolar disorder to support the contention that the trial court abused its discretion in assessing punishment.  As counsel notes, the trial court did not abuse its discretion but merely assessed the punishment originally agreed to by appellant and the State.  Moreover, the trial court assessed a sentence that was within the range of punishment authorized by Tex. Penal Code Ann. ' 12.35 (Vernon 2003).[1]  A penalty assessed within the range of punishment established by the legislature will not be disturbed on appeal.  Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984); Bradfield v. State, 42 S.W.3d 350 (Tex. App.CEastland 2001, pet. ref=d). The arguable issue is overruled.

    Counsel has provided appellant with a copy of the brief and advised appellant of his right to review the record and file a response to counsel=s brief.  Court-appointed counsel has complied with the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); Eaden v. State, 161 S.W.3d 173 (Tex. App.CEastland 2005, no pet.).


    Appellant has filed a motion to act pro se in which he responds to his court-appointed counsel=s conclusion that his appeal is frivolous. In his response, appellant contends that the trial court abused it discretion by imposing the maximum sentence available.  As stated above, the trial court rejected appellant=s plea for mitigation of his sentence and assessed a sentence authorized by law.  No abuse of discretion has been shown.  Appellant=s contentions are overruled.

    Following the procedures outlined in Anders, we have independently reviewed the record, and we agree that the appeal is without merit.  We note that counsel has the responsibility to advise appellant that he may file a petition for discretionary review by the Texas Court of Criminal Appeals.  Ex parte Owens, 206 S.W.3d 670 (Tex. Crim. App. 2006).  Likewise, this court advises appellant that he may file a petition for discretionary review pursuant to Tex. R. App. P. 66.  Black v. State, 217 S.W.3d 687 (Tex. App.CEastland 2007, no pet.).

    The motion to withdraw is granted, and the judgment is affirmed.

     

     

    PER CURIAM

     

    June 21, 2007

    Do not publish.  See Tex. R. App. P. 47.2(b).

    Panel consists of:  Wright, C.J.,

    McCall, J., and Strange, J.



    [1]Section 12.35 provides that a person convicted of a state jail felony shall be confined for a period of not more than two years but not less than 180 days. An optional fine not to exceed $10,000 is also authorized.