## NO. 12

- 13

- 00240

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

NATHANIEL JOHNSON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE §

§

§ APPEAL FROM THE 7 TH

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION PER CURIAM
Nathaniel Johnson appeals his conviction for driving while intoxicated. 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. C rim. App. 1969). We affirm.

B ACKGROUND Appellant was charged by indictment with the offense of driving while intoxicated, a
third degree felony. The indictment also included a jurisdictional enhancement paragraph, and
an allegation that he used or exhib ited a deadly weapon, a motor vehicle, during the commission
of or immediate flight from the offense. Appellant entered an “open” plea of guilty to the
offense charged in the indictment, and pleaded “true” to the enhancement paragraph. Appellant

and h is counsel signed various documents in c onnection with his guilty plea. These documents

include d a stipulation of evidence in which Appellant swore that all allegations in the indictment

were true and correct. However, he pleaded “not true” to the deadly weapon allegation.
After a punishment hearing, the trial court adjudged Appellant guilty of driving while

intoxicated, found th e enhancement paragraph to be “true,” made an affirmative finding of a
deadly weapon, a motor vehicle, and assessed his punishment at eight years of imprisonment.
This appeal followed.2 A NALYSIS PURSUANT TO A NDERS V

. C ALIFORNIA Appellant’s counsel file d 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

re view of counsel’s brief, it is apparent that counsel is well acquainted with the facts in this case.
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 th e procedural history of the case,
and further states that counsel is unable to raise any arguable issues for appeal. We have

reviewed the record for reversible error and have found none. 1 See Bledsoe v. State , 178 S.W.3d

824, 826

- 27 (Tex. Crim. App. 2005)

.

C ONCLUSION 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 App ellant’s counsel that the appeal
is wholly frivolous. Accordingly, his motion for leave to withdraw is hereby granted , and the
trial court’s judgment is affirmed

. See T EX

. R. A PP

. P. 43.2.
Counsel has a duty to, within five days of the date of this opini on, send a copy of the
opinion and judgment to Appellant and advise him of his right to file a petition for discretionary

review. See T EX

. R. A PP

. 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 r eview 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 T EX

. R. A PP

. P. 68.2. Any
petition for discretionary review must be filed with the Texas Court of Cr iminal Appeals. See

T EX

. R. A PP

. P. 68.3. Any petition for discretionary review should comply with the requirements

1 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 hi s own brief, but the time for filing such a brief has expired and we have received no pro se brief.3

of Rule 68.4 of the Texas Rules of Appellate Procedure. See T EX

. R. A PP

. P. 68.4; In re

Schulman , 252 S.W.3d at 408 n.22.
Opinion delivere d April 30, 2014. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

APRIL 30 , 2014

NO. 12

- 13

- 00240

- CR

NATHANIEL JOHNSON, Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007

- 0090

- 13)

TH I S CAUSE came to be heard on the appellate record and briefs filed

herein, and t he same being considered, it is the opinion of this court that there w as no error in the
judgment.

It is therefore ORDERED, ADJUDGED and DECREED that Appellant ’ s

counsel ’s motion to withdraw is granted

, the judgment of the court below be in all things

affi rmed , and that this decision be certified to the court below for observance.

By per curiam opinion

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

.

# THE STATE OF TEXAS

M A N D A T E

*********************************************

TO THE 7TH DISTRICT COURT OF SM ITH COUNTY, GREETING :

Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 30th day of Apr il, 2014 , the cause upon appeal to revise or reverse your judgment between

NATHANIEL JOHNSON , Appellant

NO. 12

- 13

- 00240

- CR; Trial Court No. 007

- 0090

- 13

By per curiam opinion.

THE STATE OF TEXAS , Appellee

was determined; and therein our said Court mad e its order in these words:

“ TH I S CAUSE came to be heard on the appellate record and briefs filed herein, and th e same being considered, it is the opinion of this court that there w as no error in the judgment.

It is therefore ORDERED, ADJUDGED and DECREED that Appellant ’ s counsel ’s motion to withdraw is granted

, the judgment of the court below be in all things aff irmed , and that this decision be certified to the court below for observance. ”

WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly

reco gnized, obeyed, and executed.

WITNESS, THE HONORABLE JAMES T. WORTHEN , Chief Justice of our Court of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of Tyler, this the xx day of April, 2014.

CATHY S. LUSK, C LERK

By:

_______________________________ Chief Deputy Clerk