Keith Wayne Parr v. State ( 2007 )

NO. 07-07-0236-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JULY 6, 2007 ______________________________

KEITH WAYNE PARR,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 251st DISTRICT COURT OF RANDALL COUNTY;

NO. 17513-C; HON. ANA ESTEVEZ, PRESIDING _______________________________

ORDER OF DISMISSAL _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellant, Keith Wayne Parr, appeals his conviction for possession of a controlled substance in a drug-free zone. The certification of right to appeal executed by the trial court states that "this criminal case is a plea-bargain case and the Defendant has NO right of appeal" and "the defendant has waived the right of appeal." This circumstance was brought to the attention of appellant, and opportunity was granted him to obtain an amended certification entitling him to appeal. No such certification was received within the time we allotted. Having received no certification authorizing an appeal, we dismiss the appeal per Texas Rule of Appellate Procedure 25.2(d).

The appeal is dismissed.

Per Curiam

Do not publish.

, 86 (Tex.App.-San Antonio 1997, no pet.). If this court determines the appeal has merit, we will remand it to the trial court for appointment of new counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991).

Our review of counsel's brief, including his discussion of potential appellate issues, and the record convinces us that appellate counsel conducted a thorough review of the record. We also have independently examined the entire record in the case to determine whether there are any non-frivolous grounds which might support the appeal. See Penson v. Ohio, 488 U.S. 75 (1988); Stafford v. State, 813 S.W.2d at 511.

The issue raised in appellant's response deals with the requirement stated in article 36.01 of the Code of Criminal Procedure that the prosecutor read the indictment to the jury at the outset of trial of a felony case. Tex. Code Crim. Proc. Ann. art. 36.01 (Vernon 2007). As appellant correctly notes, the indictment was not read at the beginning of his trial. The record reflects that, toward the end of testimony by the State's first witness, the trial judge and the prosecutor realized the indictment had not been read. During discussion among counsel and the court about the omission, appellant's counsel stated, "We have no problem doing it right now. If you all want to do it in front to [sic] jury, we'll do it in front of the jury." Given the choice by the court, the prosecutor chose to read the indictment and take appellant's plea of not guilty outside the jury's presence. As appellant's response also notes, the evidence received before the reading of the indictment was not reintroduced after the indictment was read. See Welch v. State, 645 S.W.2d 284, 285 (Tex.Crim.App. 1983); Grant v. State, 635 S.W.2d 933, 935 (Tex.App.-Amarillo 1982, no pet.) (both describing proper procedure).

Appellant's response does not raise an arguable ground for appeal. Any complaint over the prosecutor's failure to read the indictment in front of the jury was waived by appellant's counsel's statement. See Peltier v. State, 626 S.W.2d 30, 31 (Tex.Crim.App. 1981), quoting Essary v. State, 53 Tex. Crim. 596, 111 S.W.927 (1908) (rights now codified in article 36.01(a)(1) may be waived). No complaint over the State's failure to reintroduce the evidence taken before reading of the indictment was preserved for appellate review. See Limon v. State, 838 S.W.2d 767, 769 (Tex.App.-Corpus Christi 1992, pet. ref'd) (error not preserved when appellant did not ask that evidence heard before plea be removed from jury's consideration), citing Welch, 645 S.W.2d at 285.

Having reviewed the record before us, we agree with counsel that the appeal is frivolous. See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).

Accordingly, counsel's motion to withdraw is granted ⁽¹⁾ and the judgment of the trial court is affirmed.

James T. Campbell

Justice

Do not publish.

1. In granting counsel's motion to withdraw, however, we remind counsel to insure that he has complied with the "educational"duty to inform appellant of his right to file a pro se petition for discretionary review in the Court of Criminal Appeals. Ex parte Owens, 206 S.W.3d 670 (Tex.Crim.App. 2006).