Milton Lynch v. The State of Texas--Appeal from 7th District Court of Smith County
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NO. 12-10-00155-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS MILTON LYNCH, APPELLANT § APPEAL FROM THE 7TH V. § JUDICIAL DISTRICT COURT THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS MEMORANDUM OPINION PER CURIAM Milton Lynch appeals his conviction for 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 dismiss Appellant=s appeal. BACKGROUND Appellant was charged by indictment with the offense of a burglary of a habitation, a second degree felony. 1 The indictment also included two felony enhancement paragraphs. 2 Appellant entered an open plea of guilty to the offense charged in the indictment, and pleaded Atrue@ to both felony enhancement paragraphs. 1 2 Appellant and his counsel signed an agreed punishment See TEX. PENAL CODE ANN. § 30.02(a), (c)(2) (Vernon 2003). If it is shown on the trial of a felony offense other than a state jail felony that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by imprisonment for life, or for any term of not more than ninety-nine years or less than twenty-five years. See TEX. PENAL CODE ANN. § 12.42(d) (Vernon Supp. 2010). recommendation, 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 the indictment were true and correct. However, Appellant did not waive his right to appeal. After a punishment hearing, the trial court adjudged Appellant guilty of burglary of a habitation, found the enhancement paragraphs to be Atrue,@ and assessed his punishment at thirty-five years of imprisonment and court costs. 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 Appellant=s brief, it is apparent that his counsel is well acquainted with the facts in this case. 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 case, and further states that counsel is unable to raise any arguable issues for appeal.3 We have reviewed the record for reversible error and have found none. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). CONCLUSION As required, Appellant=s counsel has moved for leave to withdraw. See In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We agree with Appellant=s counsel that the appeal is wholly frivolous and his motion for leave to withdraw is hereby granted. See In re Schulman, 252 S.W.3d at 408-09. Counsel has a duty to, within five days of the date of this opinion, send a copy of the opinion and judgment to Appellant and advise him of his right to file a petition for discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. Should Appellant wish to seek 3 Counsel for Appellant certified that he provided Appellant with a copy of his brief and informed Appellant that he had the right to file his own brief. Appellant was given time to file his own brief, but the time for filing such a brief has expired and we have received no pro se brief. 2 further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or he must file a pro se petition for discretionary review. See In re Schulman, 252 S.W.3d at 408 n.22. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with this court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case. See TEX. R. APP. P. 68.3; In re Schulman, 252 S.W.3d at 408 n.22. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4; In re Schulman, 252 S.W.3d at 408 n.22. We dismiss Appellant=s appeal. Opinion delivered April 29, 2011. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (DO NOT PUBLISH) 3
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