Hernandez, Joe Arthur v. State ( 2000 )

NUMBER 13-97-898-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

JOE ARTHUR HERNANDEZ

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 24th District Court of Victoria County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Hinojosa, Yañez, and Kennedy⁽¹⁾ Opinion by Justice Kennedy

Appellant was indicted for driving while intoxicated, subsequent offense. He pleaded nolo contendere and was found guilty by the court. The court assessed punishment at confinement for seven years and placed appellant on community supervision for five years. The court also assessed a fine of $1,000.

Subsequently, a motion to revoke community supervision was filed alleging violations of four of the conditions of his community supervision. The court heard the motion and found "true" to three of the alleged violations. Appellant was sentenced to serve seven years confinement in the Institutional Division of the Texas Department of Criminal Justice.

Appellant's court- appointed attorney has filed a brief in which he has concluded that the appeal is wholly frivolous and without merit. Anders v. California, 386 U.S. 738 (1967). The brief meets the requirements of Anders as it presents a professional evaluation of why there are no arguable grounds for advancing an appeal. See Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); Lindsey v. State, 902 S.W.2d 9, 11 (Tex. App. ­ Corpus Christi 1995, no pet.). The record reflected that counsel mailed a copy of his brief to appellant, however, the record does not reflect that appellant was told of his right to respond or file a brief. Stafford, 813 S.W.2d at 511. We abated the appeal in order to permit counsel to communicate with appellant and notify him of his right to file a pro se brief if he desired. We have received and filed a copy of the letter which counsel sent to appellant to notify him of this right. No pro se brief has been filed.

In Penson v. Ohio, 488 U.S. 75 (1988), the Supreme Court discussed the responsibilities of an appellate court upon receiving a frivolous appeal brief. The court stated: "Once the appellate court receives this brief, it must then, itself, conduct a full examination of all the proceedings to decide whether the case is wholly frivolous." This we have done, and we conclude that the appeal is wholly frivolous and that no error appears therein.

We AFFIRM the judgment of the trial court.

NOAH KENNEDY

Retired Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this the 21st day of December, 2000.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).