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Johnny Eugene Baker v. State ( 2006 )


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  • Opinion filed August 3, 2006

     

     

    Opinion filed August 3, 2006

     

     

     

     

     

     

                                                                            In The

                                                                                 

        Eleventh Court of Appeals

                                                                       __________

     

                                                              No. 11-06-00059-CR

                                                        __________

     

                                    JOHNNY EUGENE BAKER, Appellant

     

                                                                 V.

     

                                            STATE OF TEXAS, Appellee

     

      

     

                                              On Appeal from the 29th District Court

     

                                                           Palo Pinto County, Texas

     

                                                        Trial Court Cause No. 12372

     

      

     

                                                                       O P I N I O N

    The trial court convicted Johnny Eugene Baker, upon his plea of guilty, of criminal nonsupport.  A plea bargain agreement was not entered.  The trial court assessed his punishment at 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 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.  A response has not been filed. 

    Counsel raises one possible point of error contending that the trial court=s assessment of punishment constituted cruel and unusual punishment in violation of U.S. Const. amend. VIII.  The record before this court does not support this contention.

    The Eighth Amendment prohibits punishments that are cruel and unusual. Harmelin v. Michigan, 501 U.S. 957 (1991); Solem v. Helm, 463 U.S. 277 (1983).  The trial court assessed a sentence that was within the range of punishment authorized by Tex. Pen. 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).  There is no merit to this possible issue.

    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.).

    Following the procedures outlined in Anders, we have independently reviewed the record, and we agree that the appeal is without merit. The record reflects that, during a recess after the jury was selected and sworn, appellant withdrew his case from the jury, waived his right to a jury trial, and entered an open plea of guilty to the indictment.  After the jury was dismissed, the trial court heard evidence. Appellant testified that he had not paid child support Ain a number of years.@  He admitted that he had not taken care of his responsibilities to his ex-wife and children.  Appellant further stated that his failure to financially support was Aabsolutely@ his fault. Appellant also admitted that he had made Aextremely bad decisions,@ had not taken care of his business, and had not done the Aright thing.@  Appellant testified that, if he was placed on community supervision, he would live in a travel trailer at his parents= house and Agive every penny@ he had to his children. The record also reflects that the trial court had placed appellant in jail twice before on child support issues.

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

     

    PER CURIAM

     

    August 3, 2006

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

    Panel consists of: Wright, C.J., and

    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.