Adam L. Hornsby v. State ( 2010 )

NO. 12-09-00253-CR

                         IN THE COURT OF APPEALS        

            TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

ADAM L. HORNSBY,                                       '           APPEAL FROM THE 241ST

APPELLANT

V. '         JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE '         SMITH COUNTY, TEXAS

                                                      MEMORANDUM OPINION

PER CURIAM

Adam Hornsby appeals his conviction for sexual 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 as charged to the offense of sexual assault.^[1]  The State agreed not to seek to enhance his sentence based on an out of state conviction it learned of during the plea process.  Because of his prior felony conviction, Appellant was ineligible for community supervision from a jury.^[2]  The trial court could not place him on community supervision or deferred adjudication community supervision because of the offense.^[3]  

The trial court conducted a sentencing hearing.  Both parties offered documents at the hearing.  After considering the evidence and the presentence report, the trial court sentenced Appellant to imprisonment for twenty 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. § 22.011 (Vernon Supp. 2009).

^[2] See Tex. Code Crim. Proc. Ann. art. 42.12, § 4(e) (Vernon Supp. 2009).

^[3] See Tex. Code Crim. Proc. Ann. art. 42.12, §§ 3g(a)(1)(h), 5(d)(2)(A) (Vernon Supp. 2009).