Cedric Lee Alexander, Jr. A/K/A Jeremy Fitzgerald v. State ( 2010 )

NO. 12-09-00308-CR

                         IN THE COURT OF APPEALS        

            TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

CEDRIC LEE ALEXANDER, JR.,                  '           APPEAL FROM THE 241ST

a/k/a JEREMY FITZGERALD,

APPELLANT

V. '         JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE '        SMITH COUNTY, TEXAS

                                                      MEMORANDUM OPINION

PER CURIAM

            Cedric Lee Alexander appeals his conviction for evading arrest or detention. Appellant’s counsel has filed a brief asserting compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969).  We dismiss the appeal. 

Background

A Smith County grand jury returned an indictment against Appellant for the offense of evading arrest or detention.  The indictment alleged that Appellant used a vehicle in his attempt to evade arrest and that he used a deadly weapon. Accordingly, the offense in this case was a third degree felony.^[1]  Appellant pleaded guilty as charged.  There was no plea agreement with the State.  The State did agree that several other charges would be dismissed but that the trial court judge could consider those offenses when assessing the appropriate sentence.^[2]  

The trial court conducted a sentencing hearing.  Both the State and Appellant agreed that the trial court should review a recording of the offense.  At the conclusion of the hearing, the trial court sentenced Appellant to imprisonment for ten years.  This appeal followed. 

Analysis Pursuant to Anders v. California

Appellant=s counsel has filed a brief in compliance with Anders and Gainous.  Counsel states that he has diligently reviewed the appellate record and that he is well acquainted with the facts of this case. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), counsel=s brief presents a thorough chronological summary of the procedural history of the case and further states that counsel is unable to present any arguable issues for appeal.  See Anders, 386 U.S. at 745, 87 S. Ct. at 1400; see also Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 350, 102 L. Ed. 2d 300 (1988).  We have likewise reviewed the record for reversible error and have found none.

Conclusion

As required, Appellant’s counsel has moved for leave to withdraw.  See In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).  We are in agreement with Appellant’s counsel that the appeal is wholly frivolous.  Accordingly, his motion for leave to withdraw is hereby granted, and we dismiss this appeal.  See In re Schulman, 252 S.W.3d at 408-09 (“After the completion of these four steps, the court of appeals will either agree that the appeal is wholly frivolous, grant the attorney=s motion to withdraw, and dismiss the appeal, or it will determine that there may be plausible grounds for appeal.”).

Counsel has a duty to, within five days of the date of this opinion, send a copy of the opinion and judgment to Appellant and advise him of his right to file a petition for discretionary review.  See Tex. R. App. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35.  Should Appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or he must file a pro se petition for discretionary review.  See In re Schulman, 252 S.W.3d at 408 n.22.  Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this court.  See Tex. R. App. P. 68.2.  Any petition for discretionary review must be filed with this court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case.  See Tex. R. App. P. 68.3.  Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 68.4; In re Schulman, 252 S.W.3d at 408 n.22.

Opinion delivered July 21, 2010.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

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^[1] See Tex. Penal Code Ann. §§ 12.35(c)(1), 38.04(b)(1)(B) (Vernon Supp. 2009).

^[2] See Tex. Penal Code Ann. § 12.45 (Vernon 2003).