1 In The


### Court of Appeals

Ninth District of Texas at Beaumont

____________________
NO

. 09

- 18

- 00164

- CR NO. 09

- 18

- 00165

- CR



### ____________________

ROLAND KADERLI JR. , Appellant

V.

THE STATE OF TEXAS , Appellee

_______________________________________________________ ______________

On A ppeal from the 75th District Court Liberty County, Texas Trial Cause No s
. CR33804 and CR33805

________________________________________________________ _____________

MEMORANDUM OPINION

In th ese appeal s , Roland Kaderli Jr. ’ s court

- appointed appellate counsel

submitted brief s in which he states that no arguable grounds exist to support

Kaderli ’s appeal s from his conviction s , following a trial by jury, of two f elonies. 1

1 The convictions Kaderli has appealed were consolidated and ultimately resolved by the same jury. At the conclusion of the trial, the jury found Kaderli guilty in Cause N umber CR33804 of aggravated assault with a deadly weapon. Tex. Penal2 Based on our review of the record, we agree that no arguable issues ex ist to support

Kaderli ’s appeal s.

After Kaderli appealed, appellate counsel filed brief s in which counsel

presented his professional evaluation of whether there were any issue s that might

have merit on which to base appeals

. In both briefs, Kaderli ’ s counsel concludes that

no issues that have merit can be argued to support Kaderli’s appeals

. 2

After Kaderli ’s appellate counsel filed the brief s , we gave Kaderli an

ex tension of ti me so that he could file pro se respons es in his appeals

. Kaderli filed

the same response in each appeal. Among the complaints in his response

, Kaderli

Code Ann. § 22.02(a)(2) (West 2011) (defin ing aggravated assault as an assault during which the defendant used or exhibited a deadly weapon). I n C ause N umber CR33805 the jury convicted Kaderli of driving while intoxicated, third or more. See id

. §§ 49.04, 49.09(b)(2) (West Supp. 2018) (elevating driving while intoxicated to a third

- degree felony if the State established that the defendant ha d previously been convicted

, two or more times

, of driving while intoxicated)

. The indictments relevant to both of the appeals include enhancement counts whic h were based on Kaderli’s prior convictions for other felonies. In the punishment phase of the trial, Kaderli plea ded “ true ” to the enhance ment counts , ma king him eligible for a
sentence

, on each conviction, rang ing from twenty

- five years to life

. Id. § 12.42(d) (West Supp. 2018). Kaderli elected to allow the trial court to assess his sentence s

. Following the punishment phase of the trial, the trial court sentenced Kaderli to thirty years in prison o n each case

. Unless otherwise noted, w e cite to the curr ent version of the Texas Penal Code , as any revision s to the Penal Code since the date the State indicted Kade r li in the cases now at issue are not relevant to the disposition of Kaderli’s appeal s

.

2 See Anders v. California , 386 U.S. 738 (1967); High v. State , 573 S.W.2d 807 (Tex. Crim. App. 1978 ).3 argues : (1) both trial counsel and appellate counsel were ineffective ; (2) he had valid

statute of limitations defenses in both cases to the charged offense and to the State’s

use of his prior felonies to enhanc e his punishment ; (3) the State failed to call

witnesses who could have provided testimony contradict ory to the statements that

the prosecutor made during his trial ; (4) the State failed to timely disclose some of

the exhibits the trial court admitted into evidence during trial ; (5) the trial court erred

when it overruled evidentiary objections and the motion to suppress that trial counsel

raised in the trial ; (6) the trial court erred when it refused to allow Kaderli’s expert

to access the blood in the hospital’s possession so h is expert could forensically

analyze the blood for the presence of alcohol using a gas chromatograph ; (7) the

blood test results from the hospital should have been suppressed because the State

obtained his medical records using a subpoena when it was required to obtain them

with a search warrant ; (8) the prosecutor engaged in misconduct

, prejudic ing

Kaderli’s right to a fair trial ; (9) Kaderli’s sentence s were enhanced using

convictions that violated his constitutional rights ; and (1 0 ) the jury failed to fully

and fairly consider the issues argued during his trial.

Having review ed the appellate recor d, the Anders brief s filed by appellate

counsel, and Kaderli’s pro se response, we agree with counsel’s conclusion that no

meritorious, non

- frivolous issues exist that can be raised to support either of4 Kaderli’s appeal s

. 3 Accordingly, it is unnecessary to appoint new counsel to re

- brief

the appeal s

. 4 Therefore, the trial court’s judgments in Cause Number CR33804 and

CR33805 are affirmed

. 5

AFFIRMED.

_________________________ HOLLIS HORTON Justice

Submitted on November 26 , 20 18 Opinion Delivered March 13, 2019 Do Not Publish

Before McKeithen, C.J., Horton and Johnson , JJ.

3 With respect to Kaderli’s claim he received ineffective assistance of counsel, the record does not show Kaderli’s counsel filed a motion for new trial

. T herefore

, his claim is not firmly founded in the record. See Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). W hile we agree that under the circumstances of Kaderli’s case that the charge of aggravated assault charge has a two

- year limitation s period

, t he State indicted Kaderli within two years of the offense. See State v. Schunior , 506 S.W.3d 29 (Tex. Crim. App. 2016) . Thus, when the State re

- indict ed Kaderli on the same charge, the tolling provision of the Code of Criminal Procedure operated to prevent the two

- year statute from expiring on the charge Kaderli faced for aggravated assault. See Tex. Code Crim. Proc. Ann. art. 12.05(b) (West 20 15 ).

4 C f. Stafford v. State , 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (requiring court appointment of new couns el only if the appellate court determines that arguable grounds exist to support issues in the defendant’s appeal).

5 Kaderli may challenge our decision in the se case s by filing petition s for discretionary review. See Tex. R. App. P . 68.