Ernest Lee Brown v. The State of Texas Appeal from 7th District Court of Smith County (memorandum opinion per curiam)

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NO. 12-18-00298-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS ERNEST LEE BROWN, APPELLANT § APPEAL FROM THE 7TH V. § JUDICIAL DISTRICT COURT THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS MEMORANDUM OPINION PER CURIAM Ernest Lee Brown appeals his conviction for aggravated assault with a deadly weapon. 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). Appellant filed a pro se response. We affirm. BACKGROUND Appellant was charged by indictment with aggravated assault with a deadly weapon. He pleaded “not guilty,” and the matter proceeded to a jury trial. During trial, the jury heard evidence that Appellant broke into his ex-girlfriend’s home by pushing a brick through the front door’s window. The victim was against the door attempting to prevent Appellant coming through the door and was hit with the brick as Appellant swung it around through the window. The victim further testified as follows: Q And here’s kind of a silly question that I have to ask you. When he hit you with the brick -first of all, where did it hit you? A He hit me the side of my head here. It smashed my whole face here (indicating). Q This might be silly, but did it hurt when he hit you with a brick upside your face? A Sir, yes, it hurt. I fell out. It knocked me out. The evidence showed that the victim was diagnosed with head trauma and several facial fractures. The jury also heard a recorded phone call in which Appellant stated that the victim made him mad and he put a brick through the window which hit her in the eye. Following evidence and argument, the jury found Appellant “guilty” of aggravated assault with a deadly weapon. During the sentencing portion of trial, Appellant pleaded “true” to the enhancement allegation. The jury sentenced Appellant to sixty years imprisonment. This appeal followed. ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA Appellant’s counsel filed a brief in compliance with Anders v. California and Gainous v. State. Appellant’s counsel relates that he reviewed the record and found no arguable grounds for appeal. In compliance with High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978), Appellant’s brief contains a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. 1 Appellant contends in his pro se response that (1) his Fourth Amendment rights were violated, (2) he was arrested without the required Miranda warnings, (3) the victim’s testimony was coerced or “coached” by the State, and (4) he received ineffective assistance of counsel at trial. When faced with an Anders brief and a pro se response by an appellant, an appellate court can either (1) determine that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error or (2) determine that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues. Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). CONCLUSION After conducting an independent examination of the record, we find no reversible error and conclude that the appeal is wholly frivolous. See id. Accordingly, we affirm the judgment of the trial court. 1 In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief, notified Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took concrete measures to facilitate Appellant’s review of the appellate record. See Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). Appellant was given time to file his own brief. 2 As required by Anders and Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991), Appellant’s counsel moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the merits and now grant counsel’s motion for leave to withdraw. Appellant’s 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 review of these cases by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review on his behalf or he must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the date that the last timely motion for rehearing was overruled by this Court. See TEX. R. APP. P. 68.2(a). Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See In re Schulman, 252 S.W.3d at 408 n.22. Opinion delivered September 11, 2019. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. (DO NOT PUBLISH) 3 COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT SEPTEMBER 11, 2019 NO. 12-18-00298-CR ERNEST LEE BROWN, Appellant V. THE STATE OF TEXAS, Appellee Appeal from the 7th District Court of Smith County, Texas (Tr.Ct.No. 007-0732-18) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment 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., Hoyle, J. and Neeley, J.

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