Martin Carnero, Jr. v. State ( 2011 )

NO. 07-10-00431-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JUNE 30, 2011
MARTIN CARNERO, JR., APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 59,959-D; HONORABLE DON R. EMERSON, JUDGE
Before CAMPBELL and HANCOCK, JJ., and BOYD, S.J.1
MEMORANDUM OPINION
Appellant Martin Carnero, Jr. appeals his conviction and sentence for aggravated
robbery2 following the revocation of his deferred adjudication community supervision.
His court-appointed appellate counsel has filed a motion to withdraw supported by an
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
2
See Tex. Penal Code Ann. § 29.03(a) (West 2011). This is a first degree felony
punishable by life or for any term of not more than 99 years or less than 5 years and a
fine not to exceed $ 10,000. Tex. Penal Code Ann. § 12.32(a),(b) (West 2011).
Anders3 brief. We will grant counsel’s motion to withdraw and affirm the judgment of the
trial court.
In May 2009, a Potter County grand jury indicted appellant for aggravated
robbery. According to the terms of a plea-bargain agreement, in October 2009,
appellant plead guilty to the charged offense. The trial court deferred a finding of guilt
and placed appellant on deferred adjudication community supervision for a term of eight
years. It also assessed a fine and ordered restitution.
The State filed a motion to proceed with adjudication of guilt in April 2010. It
alleged appellant failed to comply with eight conditions of his community supervision
order. Among the violations alleged was the charge that appellant possessed a useable
quantity of marijuana within 1,000 feet of a school.
In a sworn written plea, appellant plead true to each violation of community
supervision alleged by the State. Appellant and the State presented no agreed
punishment recommendation to the trial court. Prior to commencement of hearing the
State’s motion, appellant orally acknowledged before the trial court the truth of his plea.
At the hearing, appellant’s community supervision officer testified. Appellant also
testified, telling the court he was arrested for possession of marijuana and
paraphernalia in January 2010, plead guilty to those offenses, and received county jail
sentences of thirty days and ten days respectively. Appellant agreed he was required to
3
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); see
In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008) (orig. proceeding) (“[T]he sole
purpose of an Anders brief is to explain and support the motion to withdraw”).
2
notify his community supervision officer of his arrest but did not. Appellant testified he
did not make payments required by his community supervision order because he was
“spending all [his] money on drugs and alcohol and stuff like that.” He quit reporting to
the community supervision officer because he was using drugs and did not want to be
tested. Appellant indicated, in addition to marijuana, he consumed alcohol and
“sometimes” used methamphetamine. Appellant’s mother testified through an
interpreter. She explained that when appellant is under the influence of drugs “he does
his bad things.”
At the conclusion of the hearing the trial court found appellant violated his
community supervision and was guilty of aggravated robbery. Punishment was
assessed at eighteen years confinement in the penitentiary. This appeal followed.
According to the opinion of appellant’s appellate counsel expressed in the
Anders brief, nothing in the record establishes reversible error and the appeal is
frivolous. The brief discusses the case background, the grounds alleged for revocation,
and the evidence presented at the hearing. Counsel discusses two grounds of potential
error but concludes the trial court did not abuse its discretion by revoking appellant’s
community supervision and imposing a sentence within the permissible range.
Correspondence from counsel to appellant indicates counsel supplied appellant a copy
of the Anders brief and counsel’s motion to withdraw. The correspondence also points
out the right of appellant to review the record and file a pro se response and his right to
file a pro se petition for discretionary review in the Court of Criminal Appeals should he
receive an adverse decision by this court. By letter, this court also notified appellant of
3
his opportunity to submit a response to the Anders brief and motion to withdraw filed by
his counsel.4 Appellant did not file a response.
In conformity with the standards set out by the United States Supreme Court, we
will not rule on the motion to withdraw until we have independently examined the record
in each matter. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.--San Antonio 1997, no
pet.). If this court determines the appeal arguably has merit, we will remand it to the
trial court for appointment of new counsel. Stafford v. State, 813 S.W.2d 503, 511
(Tex.Crim.App.1991). We have reviewed the entire record to determine whether there
are any arguable grounds which might support an appeal. See Penson v. Ohio, 488
U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824
(Tex.Crim.App. 2005). We have found no such arguable grounds supporting a claim of
reversible error, and agree with counsel that the appeal is frivolous.
Accordingly, we grant counsel’s motion to withdraw5 and affirm the judgment of
the trial court.
James T. Campbell
Justice
Do not publish.
4
A pro se response “is not a merits brief, it is merely an informal opportunity for
the indigent defendant to present what he believes are claims or issues or areas of
procedural or substantive concern that arguably deserve a full merits brief by a second
attorney.” In re Schulman, 252 S.W.3d at 409 n.23.
5
Counsel shall, within five days after the opinion is handed down, send her client
a copy of the opinion and judgment, along with notification of the defendant’s right to file
a pro se petition for discretionary review. Tex. R. App. P. 48.4.
4