Larry Michael Leal v. State ( 2010 )

NO. 07-09-00049-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
SEPTEMBER 20, 2010
LARRY MICHAEL LEAL, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;
NO. 20,034-C; HONORABLE ANA ESTEVEZ, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
After a jury trial, appellant Larry Michael Leal was convicted of the offense of
aggravated assault.1 Punishment was assessed by the jury at life imprisonment in the
Institutional Division of the Texas Department of Criminal Justice. His court-appointed
1
See Tex. Penal Code Ann. ' 22.02(a)(2) (Vernon Supp. 2005). The indictment
contained the allegation appellant used or exhibited a deadly weapon during the
offense.
appellate counsel has filed a motion to withdraw and an Anders2 brief. We will grant
counsel's motion to withdraw and affirm the judgment of the trial court.
Appellant’s indictment included two enhancement paragraphs, setting forth his
two previous final felony aggravated assault convictions. Evidence at trial showed that
an off-duty Amarillo police officer intervened when appellant stopped his vehicle in the
street, and argued with and then began to choke a woman accompanying him. During
his encounter with the officer, appellant picked up a football-sized rock, battered the
vehicle with it, then walked toward the officer with the rock lifted over his head.
Testimony showed appellant continued toward the officer even after he drew his service
weapon and ordered appellant to drop the rock. In addition to testimony from the
officer, his wife and other witnesses, the jury heard some of the events described
through a recording of the 911 call the officer made during the encounter, which
occurred at night in the front yard of the officer’s home. Testimony also showed
appellant was intoxicated.
The jury found appellant guilty of the indicted offense, aggravated assault, and
sentenced appellant to life imprisonment. The trial court certified appellant=s right to
appeal and this appeal followed.
Thereafter, appellant's appointed appellate counsel filed a motion to withdraw
and a brief in support pursuant to Anders in which she certifies that she has diligently
reviewed the record and, in her professional opinion, under the controlling authorities
2
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 493 (1967); see In
re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008).
2
and facts of the cases, there is no reversible error or legitimate ground on which a non-
frivolous appeal can arguably be predicated. The brief discusses in detail the
procedural history of the case and the events at trial. Counsel discusses the applicable
law and sets forth the reasons she believes there are no arguably meritorious issues on
which to appeal. Counsel has certified that a copy of the Anders brief and motion to
withdraw have been served on appellant, and that counsel has advised appellant of his
right to review the record and file a pro se response. Johnson v. State, 885 S.W.2d 641,
645 (Tex.App.--Waco 1994, pet. ref'd). By letter, this Court also notified appellant of his
opportunity to submit a response to the Anders brief and motion to withdraw filed by his
counsel. Appellant filed a response raising seven issues.
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.BSan 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).
By her Anders brief, counsel raises grounds that could possibly support an
appeal, but explains why none show reversible error. She concludes the appeal is
frivolous. Appellant also raises several issues. We have reviewed each ground and
made an independent review of 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
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(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 withdraw3 and affirm the judgment of
the trial court.
James T. Campbell
Justice
Do not publish.
3
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