Mark Hagger Penigar v. The State of Texas--Appeal from Criminal District Court of Jefferson County

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-06-253 CR
NO. 09-06-254 CR
____________________
MARK HAGGER PENIGAR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause Nos. 88487, 88448
MEMORANDUM OPINION

Pursuant to plea bargains, Mark Penigar pleaded guilty to the felony offenses of delivery of a controlled substance (cocaine) and aggravated robbery. The trial court assessed ten years of deferred adjudication community supervision in both cases, but no fine. Penigar was assessed court costs and various fees in both cases and required to perform community supervision. Before Penigar completed his community supervision, the State filed a motion to revoke in each case. At the hearing on said motions, the trial court found Penigar violated certain terms of both community supervision orders, found Penigar guilty of aggravated robbery and delivery of a controlled substance (cocaine), and assessed punishment at confinement in the Texas Department of Criminal Justice, Correctional Institutions Division for terms of thirty years and six years, respectively.

Penigar's appellate counsel filed a brief that presents counsel's professional evaluation of the record and concludes the appeals are frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Stafford v. State, 813 S.W.2d 503, 509-10 (Tex. Crim. App. 1991). Penigar filed a pro se response raising two issues: (1) abuse of discretion by the trial court in revoking Penigar's community supervision because both motions to revoke failed to provide fair notice of the conditions allegedly violated; and (2) abuse of discretion by the trial court in denying Penigar's motion for new trial.

The Court of Criminal Appeals directs that the reviewing court not address the merits of issues raised in Anders briefs or in pro se responses. Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). An appellate court may determine either: (1) "that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error[;]" or (2) "that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues." Id.

We have independently reviewed the entire appellate record in both appeals, which includes clerk's records, reporter's records of the original guilty-plea proceedings, sentencing hearings, as well as the hearing on the motions to revoke. We have also reviewed the appellate briefs filed by the State and Penigar's appellate counsel, as well as Penigar's pro se brief. In light of the records before us, we find we must concur with appellate counsel's conclusion that no arguable issues support an appeal in either case. The appeals are frivolous as no reversible error is presented in either case. Therefore, we find it unnecessary to order appointment of new counsel to re-brief the appeals. Compare Stafford, 813 S.W.2d at 511. Penigar is free to file petitions for discretionary review raising error by this Court in the instant appeals. (1) We affirm the trial court's judgments.

AFFIRMED.

__________________________________

CHARLES KREGER

Justice

Submitted on June 4, 2007

Opinion Delivered October 31, 2007

Do not publish

 

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. While Penigar has a right to file petitions for discretionary review with the Court of Criminal Appeals, review is not a matter of right. See Bledsoe, 178 S.W.3d at 827 n.6 (citing Tex. R. App. P. 66.2; Tex. Const. art. V, 5(b)).