Marcus D'Keith Jones v. The State of Texas--Appeal from 114th District Court of Smith County

NO. 12-06-00216-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MARCUS D KEITH JONES, APPEAL FROM THE 114TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Marcus Jones appeals his conviction for retaliation. His appellate counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).1 We affirm.

Background

A Smith County grand jury indicted Appellant for the felony offense of retaliation. The grand jury also alleged that Appellant had previously been convicted of a felony offense. Appellant pleaded not guilty and was found guilty after a jury trial. Appellant waived his right to have a jury assess punishment. In a separate punishment hearing, the trial court found that Appellant had previously been convicted of a felony offense and assessed punishment at fifteen years of imprisonment. This appeal followed.

Analysis Pursuant to Anders v. California

Appellant s counsel has filed a brief in compliance with Anders. Counsel states that she has diligently reviewed the appellate record and that she is well acquainted with the facts of each of these cases. In compliance with Anders and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), counsel s brief presents a chronological summary of the procedural history of the case and further states that counsel is unable to present any arguable issues for appeal.

We have considered the brief submitted by Appellant s counsel and have conducted our own independent review of the record. See Anders, 386 U.S. at 745, 87 S. Ct. at 1400; see also Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 350, 102 L. Ed. 2d 300 (1988). We have found no reversible error. See Bledsoe v. State, 178 S.W.3d 824, 826 27 (Tex. Crim. App. 2005).

We did, however, discover an irregularity during our review of the record. The State proved that Appellant had been convicted of aggravated robbery on September 26, 1986. The indictment alleged that he had been convicted of aggravated assault on that date. This does not cause us to conclude that we should remand this matter with instructions to appoint counsel. What the State sought to prove was that Appellant had a prior felony conviction. See Tex. Penal Code 12.42(a)(3) (Vernon 2006). The variance between an allegation pleaded in an enhancement paragraph and the proof introduced at trial is material and fatal only if it would mislead a defendant to his prejudice. See Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986); Barrett v. State, 900 S.W.2d 748, 752 (Tex. App. Tyler 1995, pet. ref d). At the punishment hearing, Appellant s trial counsel forthrightly acknowledged that she had received discovery related to the prior conviction. The prior conviction is the same as the conviction alleged in the indictment in terms of date of conviction, cause number, and court. After our review of the record, we find no reason to conclude that it is arguable that Appellant was misled to his prejudice by the inaccurate allegation in the indictment.

Conclusion

As required, Appellant s counsel has moved for leave to withdraw. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). After considering the record and the brief and having found no reversible error, we affirm the judgment of the trial court and grant Appellant s counsel s motion for leave to withdraw.

JAMES T. WORTHEN

Chief Justice

Opinion delivered April 25, 2007.

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

(DO NOT PUBLISH)

1 Appellant was given time to file his own brief in this cause. The time for filing such a brief has expired, and we have received no pro se brief. The State waived the filing of a brief.