NO. 07-04-0235-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D AUGUST 8, 2005

______________________________ BENNY JOE ALVAREZ, APPELLAN T

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 47TH DISTRICT COURT OF POTTER COUNTY; NO. 45,64 4-A; HONO RABLE H AL MINER , JUDGE

_______________________________ Before QUINN, C.J., and REAVIS and CAMPBELL, JJ. MEMORAND UM OPINION Following a not guilty plea, appellant Benny Joe Alvarez was convicted by a jury of aggravated assault with a deadly weapon and sentenc ed to 2 7 years confineme nt. In1 Anders v. Califor nia, 386U.S. 738 , 87 S.Ct. 1396, 18L.Ed.2d 493 (196 7). 2 presenting this appeal, counsel has filed an Anders 1 brief in support of a mot ion to withdraw . We gran t counsel ’s motion and affi rm. In support of his motion to withdraw, counsel certifies he has diligently reviewed the record, and in his opinion, the record reflects no reversible error upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 ( 1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.--San Antonio 1984 , no pet.)
. Thus, he concludes the appeal is frivolous. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling authorities, there isno error in the co urt's judg ment. Counsel has also shown that he sen t a copy of the brief

to appellant and informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel has demonstrated that he notified appellant of his right to review the record and file a pro se response if he desi red to doso. Appellant did not file a response . Neithe r did theState favor us wit h a brief
. A ppella ntwas charged with assaulting his wife with a knife on the morning of January 1, 2002. At trial, the State presented evidence that the victim and appell ant began arguin g after arriving home from an evening at a local ba r. Appellant’s stepdaughter testified that she witnessed the argument an d s aw appellant trying to suffocate her mom with a pillow. She yelled fo r appell ant to sto p, and ap pellant left the room. He then returne d to the room with a knife and stabbed the victim 37 times in the neck and back.3

After appellant had left, the stepdaughter ran to her grandmother’s house and informed her that appella nt had jus t stabbed her mom. Appellant was subsequently arrested, and after hearing the evidence, a jury found him guilty of assault with a deadly weapon. During the punishmentphase, appellant took full responsibility for the assault, admitting that he was sickand had recently

used meth amphetami ne. F o llowing his conviction and sentence, appellant filed a notice of appeal. Byhis Anders

brief, counsel contends there are no arguable grounds for appeal. As a ba sis for his conclusion, counsel cites DeGarmo v. State, 691 S.W.2d 65 7, 66 1 (Tex.Cr.App. 1985), which provides that an appellant is estopped from complaining about anyerror occurring at the guilt/innocence phase of a trial if he admits his gui lt to t he charged offense during the punishment phase of the trial. Thus, when appellant testified and admitted his guilt, the purpose of the trial process had been served, i.e. , the truth had been determined, and appe llant wa s estoppe d from rai sing reve rsible e rror on ap peal. However, in Leday

v. State, 983 S.W.2 d 713, 72 5 (Tex.C r.App. 19 98), the DeGarmo doctrine was reconsidered and its ap plication was restricted to allow appellate revi ew of fundamental guaranties that were "ma de to pre serve a v alue . . . seen to be more important than the discovery of t he truth.
. . ." Accord Reyes v. State, 994 S.W.2d 151 (Tex.Cr.App 1999). The court determined that admissions of guilt at the punishment phase should not be viewed as waiv ers of sev eral type s of trial errors, i ncludin g challe nges tothe admission of evidence and the legal suffic iency o f the evi dence. See id. at 721-2 2. Pursu ant to4

L eday , t his Cour

t is requ ired to d etermine whether a ppellan t asserts any funda mental ri ghts or basic guaranties, or whether the truth-finding function prevails to estop him from presenting his issues on a ppeal. G utierrez v. State, 8 S. W.3d 739, 745 (Tex.Cr.App. 1999). Applying this standa r d, we have made an i ndepend ent exam ination of the en tire r ecord to determ ine whet her thereare any a rguable grounds w hich mig ht s upport thi s appeal. See Penson v. Ohio, 4 88 U.S. 7 5, 109 S. Ct. 346, 1 02 L.Ed.2 d 300 (19 88); Staffor d v. State, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991). We have found n o suc h grounds and agree with counsel that the appeal is frivolous. Cu rrie v. State, 516 S.W.2d 684 (Tex .Cr.App. 1 974); Lac y v. State , 477 S.W. 2d 577, 5 78 (Tex. Cr.App. 1 972). Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed. Don H. Reavis Justice Do not publish.