John Michael Thomason v. The State of Texas--Appeal from 263rd District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-92-175-CR

JOHN MICHAEL THOMASON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 263rd District Court

Harris County, Texas

Trial Court # 617,271

O P I N I O N

In this case the Appellant John Michael Thomason, after pleading no contest, was convicted of the offense of aggravated assault. See Tex. Penal Code Ann. Article 22.02(a)(1) and Article 1.07(a)(34). Punishment was assessed by the trial court at ten (10) years in the Texas Department of Criminal Justice, Institutional Division. Notice of appeal was timely filed.

Counsel on appeal has filed an Anders brief. See Anders v. California, 386 U.S. 739, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Our Court of Criminal Appeals has adopted the holding in Anders. Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991). In Anders the United States Supreme Court held:

The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae . . . . His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the [appellate] court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court not counsel then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if the state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

Anders, 386 U.S. at 744, 87 S. Ct. at 1400, 18 L. Ed. 2d 493.

After counsel files a proper Anders brief, the court of appeals must conduct its own review of the record to ascertain if there are any arguable grounds for the appeal. Stafford, 813 S.W.2d at 511. Counsel filed an Anders brief asserting that he had reviewed the entire appellate record and, in his professional opinion, appeal of the judgment is frivolous and without merit. Counsel's brief states that the indictment alleged all necessary elements of the charged offense. No motion to quash the indictment was filed. The State made no plea-bargain agreement with Appellant. After Appellant's plea of no contest was entered, a finding of guilt was withheld and a presentence investigation was completed.

The record shows that Appellant waived his right to a jury trial, that he understood his rights, that he had read and freely signed the instrument denominated "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession" and had fully reviewed it with his attorney. He further stated that he understood his rights and voluntarily waived them.

The evidence was clearly sufficient to establish his guilt. The trial court informed Appellant of the range of punishment for this offense.

The punishment is within the range prescribed by law. Appellant admitted to a misdemeanor record involving four prior convictions, namely, assault, reckless conduct, driving while intoxicated, and possession of marihuana.

Counsel served a copy of his brief upon Appellant and informed Appellant by letter that, in counsel's view, the appeal is wholly without merit, that Appellant has the right to view the record and file a pro se appellate brief should he so desire. Counsel further informed Appellant that the court will be requested to make the record available to him, and to grant an extension of time for filing of a pro se brief, if Appellant so desired. Appellant did not file a pro se brief.

After a full examination of the entire proceeding, we conclude that an appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400. We affirm the trial court's judgment.

JOHN A. JAMES, JR.

Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Justice James (Retired)

Affirmed

Opinion delivered and filed February 17, 1993

Do not publish