Leslie Wayne Hooker v. State of Texas--Appeal from 202nd District Court of Bowie County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-01-00002-CR
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LESLIE WAYNE HOOKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 202nd Judicial District Court
Bowie County, Texas
Trial Court No. 98-F-508-202
Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Justice Ross
O P I N I O N

Leslie Hooker appeals from his conviction by a jury for the offense of aggravated assault. The jury assessed punishment at ten years' imprisonment and a $5,000.00 fine, and recommended community supervision. The trial court sentenced Hooker in accordance with the jury verdict. Hooker appealed, but counsel has filed a brief in which she states that the appeal is frivolous. Hooker filed no response pro se to his counsel's certification of his appeal as frivolous.

Hooker, who was disabled in an automobile accident and is occasionally confined to a wheelchair, shot and killed a young Rottweiler dog that he believed was menacing him. Hooker was traveling down a public street in his motorized wheelchair when the Rottweiler and two smaller dogs came out of their owner's yard and into the street toward him. He had an automatic pistol, which he fired numerous times at the Rottweiler. The Rottweiler was knocked down by the first shot, but Hooker continued shooting until he had fired twelve to fourteen rounds. (1) One projectile from Hooker's weapon hit the daughter of the dogs' owner in the buttocks. Although she went to the hospital at that time, the projectile was not removed until almost two years later, shortly before trial.

An attorney, whether appointed or retained, is under an ethical obligation to refuse to prosecute a frivolous appeal. McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 436, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988). If an attorney believes in good faith there are no arguments to be made on the client's behalf, the attorney is required to so advise the appellate court and seek leave to withdraw as counsel. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Pena v. State, 932 S.W.2d 31, 32 (Tex. App.-El Paso 1995, no pet.); Oldham v. State, 894 S.W.2d 561 (Tex. App.-Waco 1995, no pet.); Johnson v. State, 885 S.W.2d 641, 646-47 (Tex. App.-Waco 1994, pet. ref'd); see Tex. R. App. P. 6; McCoy, 486 U.S. at 436. Before concluding that an appeal is frivolous, however, both retained and appointed counsel must make a diligent and thorough evaluation of the case. McCoy, 486 U.S. at 438; Pena, 932 S.W.2d at 32.

The brief in support of the motion to withdraw is a device for assuring that the indigent defendant's constitutional rights have been "scrupulously honored." McCoy, 486 U.S. at 444. Thus, such briefs should provide us "with a basis for determining whether appointed counsel have fully performed their duty to support their clients' appeals to the best of their ability." Id., 486 U.S. at 439.

Counsel has filed a brief which discusses the record and reviews the pretrial, trial, and punishment proceedings in detail, and also reviews several potential grounds for error, concluding that no error has been shown. Counsel has thus provided a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced.

We have likewise reviewed the record and agree with counsel that there are no arguable sources of error in this case.

 

The judgment of the trial court is affirmed.

 

Donald R. Ross

Justice

 

Date Submitted: October 30, 2001

Date Decided: October 31, 2001

 

Do Not Publish

1. Thirteen casings were found at the scene.