Willie Dwayne Whitfield v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-07-00413-CR Willie Dwayne Whitfield, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT NO. CR21,734, HONORABLE ED MAGRE, JUDGE PRESIDING M E M O R A N D U M O P I N I O N Appellant Willie Dwayne Whitfield pled guilty to and was convicted of burglary of a habitation with intent to commit sexual assault and of aggravated sexual assault. See Tex. Penal Code Ann. §§ 22.021 (West Supp. 2008), 30.02 (West 2003). After the jury found an enhancement paragraph (alleging that appellant was convicted of sexual assault in 1998) to be true, appellant was sentenced to life imprisonment as a habitual offender. See id. § 12.42 (West Supp. 2008). Appellant's appointed attorney has filed a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 743-44 (1967), by presenting a professional evaluation of the record demonstrating that there are no arguable grounds to be advanced. See Penson v. Ohio, 488 U.S. 75, 80 (1988); Anders, 386 U.S. at 743-44; High v. State, 573 S.W.2d 807, 811-13 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Appellant's attorney sent appellant a copy of the brief and advised him that he had the right to examine the record and file a pro se brief. See Anders, 386 U.S. at 744; Jackson v. State, 485 S.W.2d 553, 553 (Tex. Crim. App. 1972). No pro se brief has been filed. We have reviewed the record and counsel's brief and agree that the appeal is frivolous and without merit. Appellant pled guilty, leaving only the question of whether the jury would find the enhancement allegation to be true. It did, and appellant was therefore sentenced to life imprisonment. We find nothing in the record that might arguably support the appeal. We grant counsel's motion to withdraw and affirm the judgment of conviction. (1) ___________________________________________ David Puryear, Justice Before Chief Justice Law, Justices Puryear and Pemberton Affirmed Filed: August 22, 2008 Do Not Publish 1. No substitute counsel will be appointed. Should appellant wish to seek further review of his case by the court of criminal appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. See generally Tex. R. App. P. 68-79 (governing proceedings in the Texas Court of Criminal Appeals). Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the date this Court overrules the last timely motion for rehearing filed. See Tex. R. App. P. 68.2. The petition must be filed with this Court, after which it will be forwarded to the court of criminal appeals along with the rest of the filings in the cause. See Tex. R. App. P. 68.3, 68.7. Any petition for discretionary review should comply with rules 68.4 and 68.5 of the rules of appellate procedure. See Tex. R. App. P. 68.4, 68.5.