Carlos Wayne Torrez v. State ( 2010 )

NO. 12-09-00349-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CARLOS WAYNE TORREZ, ' APPEAL FROM THE 7TH
APPELLANT
V. ' JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE ' SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Carlos Wayne Torrez appeals his conviction for assault. 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
Appellant pleaded guilty to the offense of assault.1 As charged, the offense was a third
degree felony because the grand jury alleged that Appellant knew the victim of the assault was a
public servant and that the assault occurred while the public servant was discharging an official
duty.2 The grand jury also alleged that Appellant had twice before been convicted of a felony, that
both felony convictions were final before he committed this felony, and that one of the prior felony
convictions was final before the commission of the other prior felony. This enhancement, if
1
See TEX. PENAL CODE ANN. § 22.01(b)(1) (Vernon Supp. 2009).
2
See id.
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found to be true, would enhance the sentencing range to a maximum of life in prison and a
minimum of imprisonment for twenty–five years.3
As part of a plea agreement, Appellant agreed to plead guilty as charged, to admit that the
enhancement paragraphs were true, and to admit that he was guilty of assaulting another public
servant. The State agreed not to seek to cumulate this sentence with that of another case for which
he had already been sentenced to prison and not to seek a conviction on the other assault charge.4
The trial court accepted Appellant’s plea of guilty and his plea of true to the sentencing
enhancements. Following a sentencing hearing, the trial court assessed a sentence of life in
prison. 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 408B09 (“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
3
See TEX. PENAL CODE ANN. § 12.42(d) (Vernon Supp. 2009).
4
The State agreed to allow Appellant’s admission of the other criminal charge to be taken into consideration
in the sentence to be assessed in this case. See TEX. PENAL CODE ANN. § 12.45 (Vernon 2003).
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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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