Robert Howard Spain, Jr. v. The State of Texas Appeal from 294th District Court of Van Zandt County (memorandum opinion per curiam)

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NOS. 12-20-00270-CR 12-20-00271-CR 12-20-00272-CR 12-21-00273-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS ROBERT HOWARD SPAIN, JR., APPELLANT § APPEALS FROM THE 294TH V. § JUDICIAL DISTRICT COURT THE STATE OF TEXAS, APPELLEE § VAN ZANDT COUNTY, TEXAS MEMORANDUM OPINION PER CURIAM Robert Howard Spain, Jr. appeals his convictions for possession of child pornography. 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 in four separate cases with possession of child pornography. The State filed a notice of punishment enhancement in each case. Appellant pleaded “not guilty,” and the matter proceeded to a jury trial. The jury found Appellant “guilty,” and Appellant was sentenced to twenty years imprisonment and a $10,000 fine in each case. Appellant appealed, and we remanded the case for a new trial on punishment. 1 On remand, Appellant pleaded “true” to the enhancement allegations. At the conclusion of the new trial, the Spain v. State, Nos. 12-18-00257-260-CR, 2019 WL 5656498 (Tex. App.—Tyler Oct. 31, 2019, no pet.) (mem. op.). 1 jury sentenced Appellant to twenty years imprisonment in each case and no fine. The State moved to cumulate or “stack” his sentences, which the trial court granted. These appeals 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. Appellant contends in his pro se response that his jury was not impartial. 2 Specifically, he urges the trial court failed to grant a challenge for cause and three partial jurors were empaneled. He further argues that his trial counsel was ineffective. 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. As required by Anders and Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991), Appellant’s counsel has 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. 2 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). 2 As a result of our disposition of this case, 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 this case 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 petition for discretionary review pro se. 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 is overruled by this Court. See TEX. R. APP. P. 68.2. 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 Texas Rule of Appellate Procedure 68.4. See In re Schulman, 252 S.W.3d at 408 n.22. Opinion delivered January 26, 2022. 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 JANUARY 26, 2022 NO. 12-20-00270-CR ROBERT HOWARD SPAIN, JR., Appellant V. THE STATE OF TEXAS, Appellee Appeal from the 294th District Court of Van Zandt County, Texas (Tr.Ct.No. CR16-00440) 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. COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT JANUARY 26, 2022 NO. 12-20-00271-CR ROBERT HOWARD SPAIN, JR., Appellant V. THE STATE OF TEXAS, Appellee Appeal from the 294th District Court of Van Zandt County, Texas (Tr.Ct.No. CR16-00441) 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. COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT JANUARY 26, 2022 NO. 12-20-00272-CR ROBERT HOWARD SPAIN, JR., Appellant V. THE STATE OF TEXAS, Appellee Appeal from the 294th District Court of Van Zandt County, Texas (Tr.Ct.No. CR16-00442) 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. COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT JANUARY 26, 2022 NO. 12-20-00273-CR ROBERT HOWARD SPAIN, JR., Appellant V. THE STATE OF TEXAS, Appellee Appeal from the 294th District Court of Van Zandt County, Texas (Tr.Ct.No. CR16-00443) 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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