Thomas Everett Nix v. State ( 2011 )

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-11-00083-CR

                                                ______________________________

                                   THOMAS EVERETT NIX, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                        On Appeal from the 71st Judicial District Court

                                                           Harrison County, Texas

                                                         Trial Court No. 88-0275X

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

            Thomas Everett Nix has filed a notice of appeal from the trial court’s denial of his motion for judgment nunc pro tunc. 

            The right to appeal in a criminal case is a substantive right determined solely within the province of the Legislature.  Lyon v. State, 872 S.W.2d 732, 734 (Tex. Crim. App. 1994).  “A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed.”  Tex. Code Crim. Proc. Ann. art. 44.02 (West 2006).  Generally, a criminal defendant may only appeal from a final judgment.  See State v. Sellers, 790 S.W.2d 316, 321 n.4 (Tex. Crim. App. 1990).  “The courts of appeals do not have jurisdiction to review interlocutory orders unless that jurisdiction has been expressly granted by law.”  Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991); Ahmad v. State, 158 S.W.3d 525, 526 (Tex. App.—Fort Worth 2004, pet. ref’d).

            We do not have jurisdiction over an appeal from an order denying a request for judgment nunc pro tunc.  See generally State v. Ross, 953 S.W.2d 748, 751–52 (Tex. Crim. App. 1997); Sanchez v. State, 112 S.W.3d 311 (Tex. App.—Corpus Christi 2003, no pet.); Everett v. State, 82 S.W.3d 735 (Tex. App.—Waco 2002, pet. dism’d); Allen v. State, 20 S.W.3d 164, 165 (Tex. App.—Texarkana 2000, no pet.).

            We dismiss for want of jurisdiction.

                                                                        Josh R. Morriss, III

                                                                        Chief Justice

Date Submitted:          June 30, 2011 

Date Decided:             July 1, 2011

Do Not Publish          

/span> was found to have committed the offense with a deadly weapon, and was sentenced to thirty-five years’ imprisonment.^[4]

            Arterberry’s attorney on appeal has filed a brief that discusses the record and reviews the proceedings in detail.  Counsel offers seven possible appellate points and explains why those points would not be successful.  We agree with counsel’s research and interpretation of the record and applicable law.

            Due to the seriousness of the offense, the juvenile court did not abuse its discretion in waiving its jurisdiction and transferring the case to district court.^[5]  The district court had jurisdiction pursuant to an indictment which provided Arterberry sufficient notice of the charged offense.  The record establishes Arterberry pled guilty to a first degree felony offense knowingly and voluntarily,^[6] so it could not be said the trial court abused its discretion in finding Arterberry guilty.  Arterberry signed a waiver of his right to a jury, which was approved by the trial court, and signed a stipulation of evidence.  The record does not establish a genuinely arguable issue that Arterberry’s sentence was so grossly disproportionate as to be cruel and unusual punishment under the Eighth Amendment.  Finally, counsel points out the record does not support a genuinely arguable issue that Arterberry received ineffective assistance of counsel.^[7]

            Counsel has provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. This meets the requirements of Anders v. California, 386 U.S. 738, 744 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1981); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978). Additionally, this Court has reviewed the record and finds no reversible error.  See Anders, 386 U.S. at 744; Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).

            On March 2, 2011, counsel mailed a copy of the brief to Arterberry and informed him of his right to file a pro se response and of his right to review the record.  Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal.  Although this Court received a letter dated March 19, 2011, in which Arterberry expressed a desire to file a pro se response, Arterberry has filed neither a pro se response nor a motion for more time in which to file such a response.

            Having found no genuinely arguable issue for appellate review, we find the appeal to be frivolous.  Consequently, we affirm the judgment of the trial court.^[8]

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          May 16, 2011

Date Decided:             May 24, 2011

Do Not Publish

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^[1]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts.  See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005).  We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue.  See Tex. R. App. P. 41.3.

^[2]See Tex. Fam. Code Ann. § 54.02(a) (Vernon Supp. 2010).

^[3]See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2010); Tex. Penal Code Ann. § 29.03 (Vernon 2003).

^[4]The State agreed to permit the trial court to take into account an unadjudicated offense of engaging in organized criminal behavior in determining sentence for the charge of aggravated robbery with a deadly weapon.  See Tex. Penal Code Ann. § 12.45 (Vernon 2003).

^[5]No cases have been located that find an abuse of discretion in a certification of a juvenile as an adult in any case in which the juvenile was charged with aggravated robbery with a deadly weapon—a serious offense.

^[6]Arterberry entered an open plea of guilty before the trial court without a plea agreement.  The plea was taken and the punishment hearing was held as a unitary proceeding.  See Saldana v. State, 150 S.W.3d 486, 489 (Tex. App.—Austin 2004, no pet.); see also Barfield v. State, 63 S.W.3d 446, 450–51 (Tex. Crim. App. 2001).  After introduction of the punishment evidence and the presentence investigation report, the State requested life imprisonment.  Arterberry’s counsel requested the trial court to place Arterberry on deferred adjudication community supervision.  See Tex. Code Crim. Proc. Ann. art. 42.12, § 5 (Vernon Supp. 2010).  Because Arterberry was indicted for aggravated robbery with a deadly weapon, he was eligible for “deferred adjudication probation” but not “regular probation.”  Compare Tex. Code Crim. Proc. Ann. art. 42.12, § 3g (Vernon Supp. 2010) with Tex. Code Crim. Proc. Ann. art. 42.12, § 5.  After hearing closing arguments on punishment, the trial court orally pronounced Arterberry guilty and sentenced him to thirty-five years’ imprisonment.

^[7]While counsel did not call witnesses for Arterberry during punishment and there is some indication that Arterberry had some supporters in favor of a reduced sentence, nothing shows they would have been willing to testify on his behalf or that such testimony might have had any effect on his sentence.

^[8]Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request to withdraw from further representation of appellant in this case.  No substitute counsel will be appointed.  Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, appellant must either retain an attorney to file a petition for discretionary review or appellant must file a pro se petition for discretionary review.  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.