Dathan Troace Sears v. The State of Texas--Appeal from 7th District Court of Smith County

NO. 12-07-00069-CR

NO. 12-07-00070-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DATHAN TROACE SEARS, APPEAL FROM THE 7TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

PER CURIAM

Dathan Troace Sears appeals his convictions for aggravated robbery and burglary of a habitation. Appellant s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm.

Background

In two separate indictments, Appellant was charged with aggravated robbery1 and burglary of a habitation.2 The aggravated robbery indictment also alleged that Appellant used or exhibited a deadly weapon, to wit: a firearm, during the commission of or immediate flight from the offense. Aggravated robbery is a first degree felony punishable by imprisonment for life or for any term of not more than ninety-nine years or less than five years and, in addition, a fine not to exceed $10,000.3

Burglary of a habitation is a second degree felony punishable by imprisonment for any term of not more than twenty years or less than two years and, in addition, a fine not to exceed $10,000.4

At a hearing on October 16, 2006, Appellant entered an open plea of guilty to the offenses charged in the two indictments. He also pleaded true to the deadly weapon paragraph in the aggravated robbery indictment. In both cases, Appellant and his counsel signed an acknowledgment of admonishments, a waiver of jury trial, an agreement to stipulate testimony, and a stipulation of evidence in which Appellant swore that all allegations pleaded in both indictments were true and correct. The trial court adjudged Appellant guilty of both offenses. After a combined sentencing hearing on December 8, the trial court assessed Appellant s punishment at forty-eight years of imprisonment and a $10,000 fine for aggravated robbery. The trial court assessed Appellant s punishment at twenty years of imprisonment and a $10,000 fine for burglary of a habitation. Further, pursuant to section 12.45 of the Texas Penal Code, the trial court ordered restitution of $60,284.24 for two unadjudicated offenses to which Appellant pleaded guilty. The terms of imprisonment are to be served concurrently. This appeal followed.

Analysis pursuant to Anders v. California

Appellant s counsel filed a brief in compliance with Anders and Gainous, 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. From our review of counsel s brief, it is apparent that he is well acquainted with the facts in these cases. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978), counsel s brief presents a chronological summation of the procedural history of the cases and further states that counsel is unable to raise any meritorious issues for appeal.5 We have likewise reviewed the record for reversible error and have found none.

Conclusion

As required by Stafford v. State, 813 S.W.2d 503, 511 (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 February 29, 2008.

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

(DO NOT PUBLISH)

1 Tex. Penal Code Ann. 29.03(a) (Vernon 2003).

2 Tex. Penal Code Ann. 30.02(a) (Vernon 2003).

3 Tex. Penal Code Ann. 29.03(b), 12.32 (Vernon 2003).

4 Tex. Penal Code Ann. 30.02(c)(2), 12.33 (Vernon 2003).

5 Counsel for Appellant certified that he provided Appellant with a copy of his brief and that 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.