Nicholas W. Frank v. The State of Texas--Appeal from 114th District Court of Smith County

NOS. 12-02-00303-CR
12-02-00328-CR
12-02-00329-CR
12-02-00330-CR
12-02-00331-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

NICHOLAS W. FRANK,

 
APPEAL FROM THE 114TH

APPELLANT

 

V.

 
JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

 
SMITH COUNTY, TEXASMEMORANDUM OPINION
PER CURIAM

Nicholas Frank ("Appellant") appeals five convictions, two for burglary of a habitation, two for burglary of a building, and one for theft. Appellant was sentenced to imprisonment for ten years and fifteen years for the burglary of a habitation convictions, and two years for each of the remaining convictions, with all of the sentences to run concurrently. Appellant's counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm.

 

Background

In two separate cases (12-02-00303-CR and 12-02-00331-CR), Appellant was charged by indictment with the offense of burglary of a building. In another two cases (12-02-00328-CR and 12-02-00329-CR), Appellant was charged by complaint and information with burglary of a habitation. Appellant was also charged by complaint and information with theft (12-02-00330-CR). In four of the cases, Appellant waived his right to a jury and pleaded guilty. In one of the burglary of a habitation cases (12-02-00331-CR), a jury found Appellant guilty and sentenced him to five years of confinement. A motion for new trial was subsequently filed and was granted by the trial court for reasons unclear from the record. Appellant later pleaded guilty to this offense and received a ten-year sentence and $10,000.00 fine, probated for ten years. Appellant was placed on ten years of deferred adjudication probation for the other burglary of a habitation charge (12-02-00303-CR) and five years of deferred adjudication probation for each of the remaining three charges.

On September 9, 2002, the State moved to revoke Appellant's probation in each of the five cases, alleging that Appellant violated the terms of his probation by 1) committing a theft, 2) consuming marijuana, 3) failing to pay the required supervision fee, and 4) failing to pay court costs and attorney's fees. Appellant pleaded "true" to all of the State's allegations on October 2. That same day, the trial court revoked Appellant's probation, found him guilty on all five charges, and sentenced Appellant to ten years of imprisonment and imposed a $10,000.00 fine on one burglary of a habitation charge, fifteen years of imprisonment and a $5,000.00 fine on the other burglary of a habitation charge, and two years of imprisonment and a $5,000.00 fine on each of the remaining three charges. Appellant timely filed his notice of appeal on October 30.

 

Analysis Pursuant to Anders v. California

Appellant's counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969), stating that he has diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error and that there is no error upon which an appeal can be predicated. He further relates that he is well acquainted with the facts in this case. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), Appellant's brief presents a chronological summation of the procedural history of the case, and further states that Appellant's counsel is unable to raise any arguable issues for appeal. We have likewise reviewed the record for reversible error and have found none.

As required by Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991), Appellant's counsel has moved for leave to withdraw. We carried the motion for consideration with the merits of the appeal. Having done so and finding no reversible error, Appellant's counsel's motion for leave to withdraw is hereby granted and the trial court's judgments are affirmed.

 

Opinion delivered July 31, 2003.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

 
(DO NOT PUBLISH)
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JULY 31, 2003
NOS. 12-02-00303-CR
12-02-00328-CR
12-02-00329-CR
12-02-00330-CR
12-02-00331-CR
NICHOLAS W. FRANK,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th Judicial District Court of Smith County, Texas.
(Tr.Ct.No. 114-81248-99; 114-80099-99;
114-80100-99; 114-80101-99; 114-80981-99)

THESE CAUSES came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this court that there were no errors in the judgments.

It is therefore ORDERED, ADJUDGED and DECREED that the judgments of the court below be in all things affirmed, and that this decision be certified to the court below for observance.

By per curiam opinion.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

 
THE STATE OF TEXAS
M A N D A T E
*********************************************

TO THE 114TH DISTRICT COURT of SMITH COUNTY, GREETING:

 

Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 31st day of July, 2003, the cause upon appeal to revise or reverse your judgment between

 
NICHOLAS W. FRANK, Appellant
NOS. 12-02-00303-CR; 12-02-00328-CR;
12-02-00329-CR; 12-02-00330-CR; 12-02-00331-CR;
Trial Court Nos. 114-81248-99; 114-80099-99;
114-80100-99; 114-80101-99; 114-80981-99
By per curiam opinion.
THE STATE OF TEXAS, Appellee

was determined; and therein our said Court made its order in these words:

 

"THESE CAUSES came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this court that there were no errors in the judgments.

 

It is therefore ORDERED, ADJUDGED and DECREED that the judgments of the court below be in all things affirmed, and that this decision be certified to the court below for observance."

 

WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly recognized, obeyed, and executed.

 

WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of Tyler, this the ______ day of __________________, 200____.

 

CATHY S. LUSK, CLERK

 

By:_______________________________

Deputy Clerk