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NO. 12-09-00253-CR

 

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ADAM L. HORNSBY, ' APPEAL FROM THE 241ST

APPELLANT

V. ' JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE ' SMITH COUNTY, TEXAS

 

MEMORANDUM OPINION

PER CURIAM

Adam Hornsby appeals his conviction for sexual assault. Appellant’s counsel has filed a 

brief asserting 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 the 

appeal.

BACKGROUND

Appellant pleaded guilty as charged to the offense of sexual assault.1 The State agreed not 

to seek to enhance his sentence based on an out of state conviction it learned of during the plea 

process. Because of his prior felony conviction, Appellant was ineligible for community 

supervision from a jury.2 The trial court could not place him on community supervision or 

deferred adjudication community supervision because of the offense.3

 

1

See TEX. PENAL CODE ANN. § 22.011 (Vernon Supp. 2009). 

2

See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 4(e) (Vernon Supp. 2009).

3

See TEX. CODE CRIM. PROC. ANN. art. 42.12, §§ 3g(a)(1)(h), 5(d)(2)(A) (Vernon Supp. 2009). 
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The trial court conducted a sentencing hearing. Both parties offered documents at the 

hearing. After considering the evidence and the presentence report, the trial court sentenced 

Appellant to imprisonment for twenty years. This appeal followed. 

ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA

Appellant=s counsel has filed a brief in compliance with Anders and Gainous. Counsel 

states that he has diligently reviewed the appellate record and that he is well acquainted with the 

facts of this case. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807 (Tex. 

Crim. App. 1978), counsel=s brief presents a thorough chronological summary of the procedural 

history of the case and further states that counsel is unable to present any arguable issues for 

appeal. See Anders, 386 U.S. at 745, 87 S. Ct. at 1400; see also Penson v. Ohio, 488 U.S. 75, 80, 

109 S. Ct. 346, 350, 102 L. Ed. 2d 300 (1988). We have likewise 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. Accordingly, his motion for leave to withdraw is hereby granted, and we 

dismiss this appeal. See In re Schulman, 252 S.W.3d at 408-09 (“After the completion of these 

four steps, the court of appeals will either agree that the appeal is wholly frivolous, grant the 

attorney=s motion to withdraw, and dismiss the appeal, or it will determine that there may be 

plausible grounds for appeal.”).

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 
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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; In re Schulman, 252 

S.W.3d at 408 n.22.

Opinion delivered July 21, 2010.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)