NO. 07-02-0243 -CR NO. 07-02-0244 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A SEPTE MBE R 24, 2003

______________________________ JESUS ALBE RTO HERNANDEZ, APPE LLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 121 ST DISTRICT COURT OF TERRY COUNTY; NO. 4778, 4779; H ONORAB LE KELLY G. M OORE, JU DGE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPB ELL, JJ. MEM ORANDU M OPIN ION Ap pell antJesus Alberto Hernandez appeals from his convictions for aggravated robbery and escape and from his senten ces of 30 years a nd 10 ye ars incarceration, re sp ec ti ve l y. W e a ff i rm.2

On April 8, 20 02, appell ant pled gu ilty to charg es of aggravated robbery an d esca pe. The judge of t he 121st District Court of Terry C ounty found that the evidenc e substantiated appellant’s guilt, accep ted appell ant’s g uilt y pleas and fou nd appell ant guil ty. A consolidated sentencing hearing was held on A pril 29, 2002. Both the State and appellant presented evi dence at the sentencing hearing. At the conclusion of the hearing, the trial judge sentenced appe llant to serve 30 yea rs im prisonment f or the aggravated robbery conviction, and 10 years im prisonment f or the escape conviction. Appellant filed a motion for new trial on May 22, 2002. On May 24, 2002, appellant filed general notices of appeal. Counsel for appellant has filed a Motion to Wi thdraw and a Brief in Support thereof. In support of

the m otion to withdraw , counsel has certified that, in com pliance with Anders v. Cal ifor nia , 386 U.S. 738, 74 4-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), t he record has been diligentl y reviewed and that in the opinion of counsel, the record reflects no rev ers ible error or grounds upon w hich a non-frivolous appeal can arguably be predicated. Counsel thu s c onc lude s th at t he a ppe al is frivolous. Counsel has discussed w hy, under the controlling authorities, there is no reversible error i n the trial court pr oceedi ngs or judgm ent. See High v. State , 573 S.W.2d 807, 813 (Tex.Crim .App. 1978). In reaching the conclusi on that the appeal is frivo lous, co u ns el ad va nc es two pos sibleissues. In the first possible issue advanced by counsel, counsel argues that the trial court potenti ally er red by admitting app ella nt’s written statem ent as evidence aga inst1 Further reference to T EX . C R IM . P ROC . C ODE A NN . art. 38.22 shal l be by refer ence to “art. 38.22. ” 3 him during the punishment hearing. Counsel argues that it is unclear that the procedural requirementsof T EX . C R IM . P ROC . C ODE A NN . art. 38.22(2)(a) (Vernon 1979) 1 wer e sufficiently complied w ith so as to render appellant’s statem ent adm issible as evidence. Specifica lly, counsel argues that it is unclear whether the person to whom appellant ga ve his written statem entwas pres ent when a ppellant was given the w arnings required by art. 38.22. In the second pos sible issue advanced by counsel, coun sel ide ntifies several instances during the punishm enthearing where the trial court allowed evidence perta ining to appellant’s juvenile record over appellant’s obj ection. After referencing, analyzing and discussing both the record, counsel has discussed why, under the controlling authorities, there is no arguably reversible error in the trial court’s judgm ent. See High v. State , 573 S .W.2d 807, 813 (Tex .Crim.A pp. 1978). In concluding that t he appea l is witho ut m erit, cou nsel note s that in re gard to a ppell ant’s written sta tem ent , th e ev iden ce cont aine d in the statem ent was largely duplicati ve of other evide nce t hat w

as prope rly beforethe co urt . In addition, counsel notes that parts of appell ant’s statem ent could have been properl y admitted to impeach appell ant’s testimon y during the hearing which was inconsistentwith appellant’s version of events as detailed in the written statem ent. T EX . R. E V ID . 613. Therefore, counsel concludes th at it is unclear how adm ission of the statement could have affect ed appell ant’s substanti al ri ghts.4

Counsel notes that the w ritten st at eme nt re fl ec ts th at i t wa s ma de to th e s ame of ficer who adm inistered the warning required by art. 38.22. Therefore, the s tatem en t fac ially com plies with art. 38.22's requirem ents. According to that officer’s testim ony, he wasin and out of the roomwhile appellant gave his statem ent. Counsel directs our attention to evidence that another off icer was in the sam e room when appellant was giving his statem ent. See , e.g ., Dow thit t v. St ate , 931 S.W.2d 244, 258 (Tex.Crim .App. 1996) (holding that the requirem ents of art. 38.22 are s atisfied if the person who takes the statem entis present when another person adm inisters the statut ory warni ngs). That officer had previously been released from his subpoena with appellant’s consent and was no longer available to testify. W e also note that the w itness to whom the statem ent was nominally given testified that appellant signed the statem ent. W e further note that there wasno o bj ect ion to th e ef fec t th at a ppe llant ’s sta tem ent w as n ot volun tar ilyma de or that the statutory w

arnings were not adm inistered. See , e.g ., Hulen v. Stat e , 1 45 Te x. Cr i m. 344, 346-47, 167 S.W.2d 752, 753 (1942)

. Reg ard ing the second possible issue advanced by counsel, the Legislature has provided tha t evidence of juvenile adjudications are adm issible during the punishment phase of trial. See T EX . C R IM . P ROC . C ODE A NN . § 37.0 7(3)(a) (Vernon S upp. 200 3). Counsel has attached ex hibits showing that a copy of the Andersbrief and Motion to W ithdraw have been f orwarded to appe llant, and that counsel hasappropriately advised appellant of appellant’s right to review therecord and file a response to counsel’s m otion and brief. Appellant has not filed a response to couns el’s mo tion and brief.5

We have m ade an independent exam ination of the record to determ ine whether there are any other arguable grounds for the a ppeals. See Pe nso n v. Ohio , 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed. 2 d 300 (19 88); Stafford v. S tate , 813 S.W.2d 503, 511 (Tex.Crim .App. 1991). We have found no such grounds. We agree that the app eals are frivolous. Accordingl y, coun sel’s Moti on to Wi thdraw is granted. The judgm ent of the trial court is affirmed.

Phil Johnson Chief Justi ce Do not publish.