NOS. 12-09-00455-CR
12-09-00456-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
GREGORY LYNN APPLEGATE, § APPEALS FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Gregory Lynn Applegate appeals his convictions for aggravated sexual assault of a child
and sexual assault of a child. 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). We dismiss these appeals.
BACKGROUND
Appellant was charged by indictment with the offense of aggravated sexual assault of a
child, a first degree felony.1 He was also charged by indictment with the offense of sexual
assault of a child, a second degree felony.2 Appellant entered an “open” plea of guilty to the
offenses charged in the indictments. In each case, Appellant and his counsel signed an agreed
punishment recommendation, an acknowledgment of admonishments, a waiver of jury trial, an
1
See TEX. PENAL CODE ANN. § 22.021 (a)(1)(B)(i), (a)(2)(B), (e) (Vernon Supp. 2010).
2
See TEX. PENAL CODE ANN. § 22.011(a)(2)(A), (f) (Vernon Supp. 2010).
agreement to stipulate testimony, and a stipulation of evidence in which Appellant swore that all
allegations pleaded in both indictments were true and correct and judicially confessed to the
offenses alleged in the indictments.
The trial court adjudged Appellant guilty of both offenses. After a combined sentencing
hearing, the trial court assessed Appellant=s punishment at fifty years of imprisonment and a
$10,000 fine for the offense of aggravated sexual assault of a child.3 The trial court assessed
Appellant=s punishment at twenty years of imprisonment and a $10,000 fine for the offense of
sexual assault of a child.4 The terms of imprisonment are to be served concurrently. This appeal
followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant=s counsel filed a brief in compliance with Anders and Gainous, stating that he
has diligently reviewed the appellate record and is of the opinion that the record reflects no
reversible error and that there is no error upon which an appeal can be predicated. From our
review of Appellant=s brief, it is apparent that his counsel is well acquainted with the facts in
these cases. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807, 812
(Tex. Crim. App. 1978), counsel=s brief presents a chronological summation of the procedural
history of the cases, and further states that counsel is unable to raise any arguable issues for
appeal.5 We have reviewed the record for reversible error and have found none.
CONCLUSION
As required, Appellant=s counsel has moved for leave to withdraw. See In re Schulman,
252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d
503, 511 (Tex. Crim. App. 1991). We are in agreement with Appellant=s counsel that the appeal
is wholly frivolous and his motion for leave to withdraw is hereby granted. See In re
3
See TEX. PENAL CODE ANN. § 12.32 (Vernon Supp. 2010).
4
See TEX. PENAL CODE ANN. § 12.33 (Vernon Supp. 2010).
5
Counsel for Appellant certified that he provided Appellant with a copy of his brief and informed
Appellant that he had the right to file his own brief. Appellant was given time to file his own brief, but the time for
filing such a brief has expired and we have received no pro se brief.
2
Schulman, 252 S.W.3d at 408-09.
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 further review of this case by the Texas Court of Criminal Appeals, he must either
retain an attorney to file a petition for discretionary review or he must file a pro se petition for
discretionary review. See In re Schulman, 252 S.W.3d at 408 n.22. 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 these cases. See TEX. R.
APP. P. 68.3; In re Schulman, 252 S.W.3d at 408 n.22. 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; In re Schulman, 252 S.W.3d at 408 n.22.
We dismiss Appellant=s appeals.
Opinion delivered November 24, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
3