In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00108-CR ______________________________
RONNIE WILLIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 202nd Judicial District Court Bowie County, Texas Trial Court No. 01F0451-202
Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Ronnie Willis appeals from his conviction for burglary of a building. A jury found him guilty and assessed punishment at twenty years' imprisonment. On appeal, Willis contends that the punishment charge was erroneous, resulting in an illegal sentence, and that, because counsel failed to object to the punishment charge, counsel was ineffective.
Willis was tried for a state jail felony pursuant to Tex. Pen. Code Ann. § 30.02(a)(1), (c)(1) (Vernon 2003). An enhancement paragraph alleged two prior felony convictions, but the evidence showed they were actually prior state jail felony convictions. (1) The Texas Court of Criminal Appeals held in Campbell v. State, 49 S.W.3d 874, 878 (Tex. Crim. App. 2001), that the proper degree of enhancement for a state jail felony when the defendant has two prior state jail felony convictions, either sequential or nonsequential, is to a third-degree felony as specified by Tex. Pen. Code Ann. § 12.42(a)(1) (Vernon 2003). (2) The punishment charge in this case assumed the proper enhancement was to a second-degree felony and accordingly specified a range of punishment of between two and twenty years. This is the same error addressed by Campbell. The State has conceded error.
We must therefore conclude that the charge was erroneous and that the error resulted in both the potential and the reality of a sentence beyond the range available for this conviction. We are thus required to return the case to the trial court for a new punishment hearing. See Campbell, 49 S.W.3d at 875.
We reverse Willis' sentence and remand the cause for a new trial on punishment.
Josh R. Morriss, III
Chief Justice
Date Submitted: July 3, 2003
Date Decided: July 8, 2003
Do Not Publish
1. The State also proved one additional felony conviction and another state jail felony conviction. That does not, however, change the analysis in this case.
2. Tex. Pen. Code Ann. § 12.35 (Vernon 2003).
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00195-CR
______________________________
DONALD BRIAN MOSLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 354th Judicial District Court
Hunt County, Texas
Trial Court No. 25305
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Donald Brian Mosley appeals from his conviction for the offense of aggravated sexual performance of a child. Tex. Penal Code Ann. § 22.021(a)(2)(B) (Vernon Supp. 2009). Mosley pled guilty to the charges without a negotiated plea agreement. The trial court assessed his punishment and sentenced Mosley to forty years imprisonment. He was represented by appointed counsel at trial and on appeal.
Mosleys attorney has filed a brief which discusses the record and reviews the proceedings in great detail. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1981); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).
Counsel mailed a copy of the brief to Mosley January 28, 2010, informing Mosley of his right to file a pro se response and of his right to review the record. Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal. Mosley has neither filed a pro se response, nor has he requested an extension of time in which to file such response.
We have determined that this appeal is wholly frivolous. We have independently reviewed the clerks record and the reporters record, and we agree that no arguable issues support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 82627 (Tex. Crim. App. 2005).
In a frivolous appeal situation, we are to determine whether the appeal is without merit and is frivolous, and if so, the appeal must be dismissed or affirmed. See Anders, 386 U.S. 738. We affirm the judgment of the trial court.[1]
Jack Carter
Justice
Date Submitted: April 12, 2010
Date Decided: April 13, 2010
Do Not Publish
[1]Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsels request to withdraw from further representation of Mosley in this case. No substitute counsel will be appointed. Should Mosley wish to seek further review of this case by the Texas Court of Criminal Appeals, Mosley must either retain an attorney to file a petition for discretionary review or Mosley 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 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. 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.