Daniel Eugene Smith v. The State of Texas--Appeal from 71st District Court of Harrison County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00028-CR

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DANIEL E. SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 71st Judicial District Court

Harrison County, Texas

Trial Court No.03-0315X

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

On December 30, 2003, Daniel E. Smith waived a jury trial and pled guilty to two counts of burglary of a habitation. The indictment further alleged Smith had been previously and finally convicted of a felony offense, burglary. Smith pled true to the enhancement allegation contained in the indictment. There was no negotiated plea agreement regarding punishment in this case.

After admonishing Smith regarding the enhanced punishment range applicable in this case (five to ninety-nine years, or life), the trial court accepted Smith's guilty plea. The trial court then heard evidence and argument regarding punishment. The trial court ultimately sentenced Smith to imprisonment for life. Smith then appealed the trial court's judgment.

On July 12, 2004, Smith's appellate counsel filed an Anders // brief in which he professionally discussed the record, described the issues reviewed, and concluded there were no arguable grounds for appeal. As required by Anders, he also filed a motion to withdraw. Counsel sent Smith a copy of the appellate brief and informed Smith of his right to file a pro se response and of his right to review the record.

This Court informed Smith at that time his response, if any, was due by August 11, 2004. As of this date, we have not received a pro se response.

We have independently reviewed the record and the brief filed by counsel in this appeal, and we agree there are no arguable issues that would support an appeal in this case. Smith's guilty plea was knowingly, intelligently, and voluntarily given. With respect to punishment considerations, the trial court had before it evidence that Smith had a long history of drug abuse, that he stole as a means of supporting that drug habit, and that he had become involved with the Aryan brotherhood. These considerations do not lend themselves to a finding that the trial court abused its discretion in assessing Smith's punishment, especially since punishment was assessed within the range provided for by statute. See Tex. Pen. Code Ann. 12.32 (Vernon 2003) (first-degree felony punishment range is five to ninety-nine years or life); Tex. Pen. Code Ann. 12.42(b) (Vernon Supp. 2004 2005) (enhancement of second-degree felony to first-degree punishment range based on prior felony conviction); 30.02 (Vernon 2003) (burglary of a habitation is a second-degree felony). We affirm the trial court's judgment.

Jack Carter

Justice

Date Submitted: September 22, 2004

Date Decided: September 23, 2004

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