### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00277- CR
John Wesley Herbold, Ap pellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2011 -27 7, H ONO RAB LE JACK H . RO B ISO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
This is an appea l pursuant to Anders v. Calif ornia , 386 U.S. 738 (1967). Appellant J ohn Wesley Her

bold pleade d guilty to the offe nse of ag g ravated assault with a d ea d l y wea pon, specific ally , a motor vehic le. SeeTex. P enal Code Ann. § 22.02(a) (2) ( West 2011). Punishm ent, enhanc ed by two prior convictions fo r the offe nse of burg lary of a habitation, was assessed at 25 y ear s’ imprisonment.

In a tw o -c o u n t indictment, Her bold was char g ed with the offe nses of intox ication assault and ag g ravated assault. As part of a plea agree ment with the State, the intox ication-a ssault char g e wa s d ismiss ed. Her bold pleade d guilty to the rema ining char g e and pleade d true to the State’s enha

nceme nt alleg ations. At the punishment hear ing, the district court hear d evidenc e tending to show that on September 13, 2009, Her

bold was driving err atically on I -35 when his vehicle collided with anothervehicle. One of the eyewitnesses to the collision, Gustacio Guer ro, testified that he had been driving
on I -35 when he observe d Her bold’s vehicle near ly collide with his vehicle, “almost hit a guardr ail,” drive “ac ross one or two lanes” of traff ic befor e “we aving ” back into Guer ro’s lane, and finally drive
on the rig ht shoulder of the road in an attempt to pass an 18-whe eler
. Be fore Her bold’s vehicle was able to pass the truck, Guer ro rec alled, the vehicle collided with an SUV that had been parke d on the side of the r oad.

Acc ording to the evidenc e prese nted, the collision seriously injured one of the passeng ers in the vehicle that was parke d on the side of the road. The victim, a 14-year -old g irl, and the victim’s mother, who had been d ri v i n g the vehicle shortly befor e the collision, both provided testimony descr ibing the circ umstances of the collision and the sever ity of t h e victim’s injuries resulting from the collision. Photogra phs of the victim and her injuries wer e admitted into evidenc e. Four witnesses testified for the defe nse: Her bold’s mother, his former crimi nald ef en s e at t orney , and two of his doctors. Their testimony tended to show that Her bold had an
ex t ensi ve criminal history , including both misdemeanors and felonies, that his criminal behavior had become worse afte r his son had passed awa y , and that he had sever al medical issues, including
an endocr ine disorder that, acc ording to the testimony of one of his doctors, “produc es a lot of
excess adre nalin” and makes a person “ver y nervous, sometimes easily agi t ated, jittery ,” and “possibly ” ag g ressive.

He rb old’s court-a

ppointed attorney has filed a motion to withdraw supported b y
a brief concluding that the appea l is frivolous and without merit. The brief meets the require ments
o f Anders v. Calif

ornia by prese nting a profe ssional evalua tion of the rec ord demonst ra t i n g wh y

2there are no arguable gro u n d s to be advanc ed. See 386 U.S. at 744-45; see also Penson v. Ohio ,

488 U.S. 75 (1988); High v. State , 573 S.W .2d 807 (Tex. Crim. Ap p . 1 9 7 8 ); Currie v. State , 516 S.W .2d 684 (Tex. Crim. App. 1974); Jack son v. State , 485 S.W .2d 553 (Tex. Crim. App. 1972); Gainous v. State , 436 S.W .2d 137 (Tex. Crim. App. 1969). Her bold was mailed a copy of counsel’s brief and advised of hi s rig ht to examine the appellate record and t o fi l e a pro se brief. No pro se brief ha s been f

iled. We have revie wed the re c o r d and counsel’s brief and agree that the appea l is frivolous and without merit. We find nothing in the rec ord that might arguably support the appea l. Counsel’s motion to wit hdrawis gr anted.

The judg ment of convic tion is affirmed.

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Pury ear , Pemberton and F ield Affir med Filed: Mar ch 22, 2013 Do Not Publish

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