Joseph Jeffrey v. State

NO. 07-09-0067-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

NOVEMBER 13, 2009

______________________________

JOSEPH AKA JOEY H. JEFFREY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2007-418170; HONORABLE WELDON KIRK, JUDGE

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

          Following a plea of not guilty, Appellant, Joseph aka Joey H. Jeffrey, was convicted by a jury of intoxication assault with a vehicle with an affirmative deadly weapon finding. He pled true to two enhancements. Punishment was assessed by the trial court at confinement for life. After an appeal from his conviction was dismissed by this Court for his counsel’s failure to timely file a notice of appeal, Appellant prosecuted a writ of habeas corpus alleging ineffective assistance of counsel and was granted an out-of-time appeal by the Texas Court of Criminal Appeals. In presenting this appeal, counsel has filed an Anders brief in support of a motion to withdraw. We grant counsel’s motion and affirm.

          In support of his motion to withdraw, counsel certifies he has conducted a conscientious examination of the record and, in his opinion, the record reflects no potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex.Crim.App. 2008). Counsel candidly discusses why, under the controlling authorities, the appeal is frivolous. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978). Counsel has demonstrated that he has complied with the requirements of Anders and In re Schulman by (1) providing a copy of the brief to Appellant, (2) notifying him of his right to file a pro se response if he desired to do so, and (3) informing him of his right to review the record. In re Schulman, 252 S.W.3d at 408. By letter, this Court granted Appellant thirty days in which to exercise his right to file a response to counsel’s brief, should he be so inclined. Id. at 409 n.23. Appellant did file a response. The State, however, did not favor us with a brief.

          Late at night on September 23, 2007, Appellant, while intoxicated, was driving on the wrong side of North Loop 289 and struck the complainant’s pickup with his car. A witness who observed Appellant driving at a high rate of speed while swerving called 911. A Lubbock Police Officer responded to the call and observed Appellant, who was unresponsive, sitting in his car stopped in the middle of the road. Appellant and the complainant were both injured and the officer called for medical assistance. The officer followed the ambulance to the hospital to interview Appellant and the complainant.

          According to the officer, Appellant showed symptoms of being intoxicated. Warnings were administered and Appellant consented to a blood specimen. At trial, testimony was presented that Appellant’s sample contained 0.31 grams of alcohol per 100 milliliters of blood–or his blood alcohol content was .263, well above the legal limit. The officer visited the complainant in the hospital to assess her injuries. He testified that she suffered deep lacerations to her left arm, left knee, left ankle, had a broken wrist, and bruising to her upper torso. At the time of trial, she testified she had undergone multiple surgeries to treat her injuries.

          An investigation confirmed that Appellant had traveled the wrong way on North Loop 289 and crashed into the complainant’s pickup at a high rate of speed. Appellant was arrested and indicted for, among other charges, driving while intoxicated and using or exhibiting a deadly weapon, to wit: an automobile, that in the manner of its use and intended use was capable of causing death or serious bodily injury. The indictment was enhanced by two felonies.

           We have independently examined the entire record to determine whether there are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d at 409; Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such issues. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After reviewing the record, counsel’s brief, and Appellant’s pro se response, we agree with counsel that there are no plausible grounds for appeal. See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).

          Accordingly, counsel's motion to withdraw is granted and the trial court’s judgment is affirmed.

                                                                           Patrick A. Pirtle

                                                                                 Justice

                                                                                                                                    

Do not publish.

deWhenUsed="false" Name="Medium List 2 Accent 5"/>

NO. 07-10-00451-CR

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL B

 

AUGUST 3, 2011

 

 

CLARENCE CERF, APPELLANT

 

v.

 

THE STATE OF TEXAS, APPELLEE

 

 

 FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

 

NO. 55,527-C; HONORABLE PATRICK PIRTLE, JUDGE

 

 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

 

 

ORDER OF ABATEMENT AND REMAND

Appellant, Clarence Cerf, filed a notice of appeal from his conviction for assault on a public servant, and sentence of 55 years’ incarceration and $5,000 fine.  The appellate court clerk received and filed the trial court clerk=s record on March 17, 2011.  The official court reporter filed the reporter’s record with the Clerk of this Court on May 19.  Consequently, appellant’s brief was due to be filed on or before June 20.  Appellant filed a request for extension of time to file the brief on June 22.  This motion was granted and the deadline for the brief was extended to July 11.  On July 18, this Court sent appellant notice that his brief was past due.  In that letter, this Court informed appellant that, if he failed to file his brief by July 28, the appeal will be abated and the cause remanded to the trial court without further notice.  To date, appellant has not filed his brief nor responded to our July 18 correspondence.

Accordingly, we now abate this appeal and remand the cause to the trial court.  See Tex. R. App. P. 38.8(b)(2).  Upon remand, the judge of the trial court is directed to immediately cause notice to be given of and to conduct a hearing to determine: (1) whether appellant desires to prosecute this appeal; (2) if appellant desires to prosecute this appeal, whether appellant is indigent and whether appellant desires that counsel be appointed to represent him on the appeal; and (3) what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant=s appeal if appellant does not desire to prosecute this appeal or, if appellant desires to prosecute this appeal, to assure that the appeal will be diligently pursued.  If the trial court appoints counsel for appellant or if appellant retains counsel, the court should cause the Clerk of this Court to be furnished the name, address, and State Bar of Texas identification number of the newly-appointed or newly-retained attorney. 

The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact, conclusions of law, and recommendations and cause them to be included in a supplemental clerk=s record; (3) cause the hearing proceedings to be transcribed and included in a supplemental reporter=s record; (4) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk=s record or the supplemental reporter=s record; and (5) cause the records of the proceedings to be sent to this Court.  See Tex. R. App. P. 38.8(b)(3).  In the absence of a request for extension of time from the trial court, the supplemental clerk=s record, supplemental reporter=s record, and any additional proceeding records, including any orders, findings, conclusions, and recommendations, are to be sent so as to be received by the Clerk of this Court not later than August 31, 2011.           

 

Per Curiam

Do not publish.