Cody Lee White v. State ( 2004 )

NO. 07-04-0423-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

DECEMBER 28, 2004

______________________________



CODY LEE WHITE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 43,845-A; HONORABLE HAL MINER, JUDGE

_______________________________

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

MEMORANDUM OPINION

Appellant Cody Lee White appeals a conviction for aggravated theft of $1500 or more but less than $20,000, enhanced, and punishment of confinement for 8 years. We affirm.

Appellant was charged by indictment with the offense of aggravated theft of $1500 or more, but less than $20,000, enhanced by two state jail felonies. Pursuant to a plea agreement with the State, appellant waived trial by jury and entered a plea of guilty. The trial court accepted the plea of guilty, found that the evidence substantiated appellant's guilt, followed the plea agreement and, on July 22, 2002, deferred adjudication of guilt and placed appellant on community supervision for 10 years. Appellant did not appeal from the proceedings.

On June 24, 2004, an Amended Motion to Proceed With Adjudication of Guilt on Original Charge was filed. A hearing on the motion was conducted on July 9, 2004. The trial court found allegations in the motion to be true. Following a separate punishment hearing, the court sentenced appellant to confinement in the Institutional Division of the Texas Department of Criminal Justice for 8 years. No motion for new trial was filed. Appellant timely filed notice of appeal. The trial court certified appellant's right of appeal.

Appellant's appointed appellate counsel has filed a Motion to Withdraw and a Brief in Support thereof. In support of the motion, counsel has certified that, in compliance with Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), the record has been diligently reviewed. In the opinion of counsel the record reflects no reversible error or grounds upon which a non-frivolous appeal can arguably be predicated. See id.

Counsel has attached exhibits showing that a copy of the Anders brief and Motion to Withdraw have been forwarded to appellant, and that counsel has appropriately advised appellant of his right to review the record and file a response to counsel's motion and brief. The appellate clerk has forwarded correspondence to appellant directing him to file any response to his counsel's Anders brief and Motion to Withdraw no later than October 20, 2004. Appellant has not filed a response to counsel's motion and brief.

We have made an independent examination of the record to determine whether there are any arguable grounds meriting appeal. See Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991).

The State offered unrebutted proof of appellant's violations of community supervision conditions. Appellant desired to testify, did so, and admitted to violations of conditions of his community supervision provisions. The punishment imposed was within the range provided by statute. The record does not support any arguably meritorious error which was harmful to appellant.

The judgment of the trial court is affirmed. Appellate counsel's Motion to Withdraw is granted.

Phil Johnson

Chief Justice

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                                                            NO. 07-10-0026-CR

                                                   IN THE COURT OF APPEALS

                                       FOR THE SEVENTH DISTRICT OF TEXAS

                                                                 AT AMARILLO

                                                                      PANEL B

                                                           FEBRUARY 23, 2010

                                            ______________________________

                                                   ALFRED JOHN MCDONALD,

                                                                                                            Appellant

                                                                             v.

                                                        THE STATE OF TEXAS,

                                                                                                            Appellee

________________________________

              FROM THE COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY;

                              NO. 2009-02848-A; HON. JIM CROUCH, PRESIDING

                                           _______________________________

                                               ON ABATEMENT AND REMAND

                                           _______________________________

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

Appellant appeals from his conviction for assault.  The clerk=s record was filed on January 25, 2010.  The reporter=s record has not been filed.  An extension motion was filed by the reporter on February 16, 2010, representing that appellant has not paid or made arrangements to pay for the reporter’s record.

Accordingly, we abate this appeal and remand the cause to the County Criminal Court of Denton County (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:

1.  whether appellant desires to prosecute the appeal;

         2.  whether appellant is indigent; and, if so,

3.  whether the appellant is entitled to a free appellate record due to his indigency.

The trial court shall cause the hearing to be transcribed. So too shall it 1) execute findings of fact and conclusions of law addressing the foregoing issues, 2) cause to be developed a supplemental clerk=s record containing its findings of fact and conclusions of law and all orders it may issue as a result of its hearing in this matter, and 3) cause to be developed a reporter=s record transcribing the evidence and arguments presented at the aforementioned hearing, if any.  Additionally, the district court shall then file the supplemental records and reporter=s records transcribing the hearing with the clerk of this court on or before March 25, 2010.  Should further time be needed by the trial court to perform these tasks, then same must be requested before March 25, 2010.

It is so ordered.

Per Curiam

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