Johnny Curry v. The State of Texas--Appeal from 338th District Court of Harris County

MEMORANDUM OPINION
No. 04-03-00124-CR
Johnny CURRY,
Appellant
v.
The STATE of Texas,
Appellee
From the 338th Judicial District Court, Harris County, Texas
Trial Court No. 907635
Honorable Brock Thomas, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: June 23, 2004

AFFIRMED; MOTION TO WITHDRAW GRANTED

After Johnny Curry entered an open plea of guilty to a charge of aggravated robbery, the trial court sentenced him to forty-five years confinement in the Texas Department of Criminal Justice - Institutional Division. On appeal, Curry's court-appointed appellate attorney has filed a brief in which he concludes this appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). After Curry was provided copies of the brief, the motion to withdraw, and the record, he filed a pro se brief challenging the sufficiency of the evidence to support his conviction and the trial court's finding that a deadly weapon was used.

Curry waived in writing the appearance, confrontation, and cross-examination of witnesses, signed a "judicial confession," and consented to use of the "judicial confession" as evidence. See Tex. R. Crim. Proc. Ann. art. 1.15. During the plea hearing the State offered, and the trial court admitted, Curry's signed "judicial confession," which states:

on or about March 18, 2002, [Curry] did then and there unlawfully, while in the course of committing theft of property owned by Jenny Birto and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place Jenny Birto in fear of imminent bodily injury and death, and [Curry] did then and there use and exhibit a deadly weapon, to-wit: a firearm.

This evidence is sufficient to support Curry's plea, as well as the trial court's findings of guilt and the use of a deadly weapon. See Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim. App. 1996). We therefore affirm the trial court's judgment and grant Curry's attorney's motion to withdraw.

Sarah B. Duncan, Justice

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