NO. 07-04-0346-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D JULY 14, 2005

______________________________ JAYMIE B. TAYLOR, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 364TH DISTRICT COURT OF LUB BOCK COUNTY; NO. 2003-403292; HONORABL E BRADL EY S. UN DERWOOD, JUDGE

_______________________________ Before QUINN, C.J., and REAVIS and CAMPBELL, JJ. MEMORAND UM OPINION Pursuantto an open plea o f guilty, ap pellant Jaymie B. Taylor was convicted of possession of less than one gram of methamphetamine, a state jail felony, and punishment1 Anders v. Califor nia, 386U.S. 738 , 87 S.Ct. 1396, 18L.Ed.2d 493 (196 7). 2 A lm ostnine months after counsel filed theAnders brief, appellant filed correspondence complaining she had been punished in absentia. That issue is raised by counsel and reviewed in this opinio n. 2 was assessed at two years confinement. In presenting this app eal, counsel has filed an Anders 1 brief in support of a motion to withdr aw. We gr

ant couns el’s moti on and a ffirm. In support of his motion to withdraw, counsel certifies he has diligently reviewed the record and, in his opinion, the record reflects no reversible error upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 ( 1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.--San Antonio 1984 , no pet.)

. Thus, he concludes the appeal is frivolous. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling authorities, there isno error in the co urt's judg ment. Counsel has also shown that he sen t a copy of the brief

to appellant and informed appellant that, in counsel's view, the appeal is wit hout merit. In addition, counsel has demonstrated that he notified ap pellant of her rightto reviewthe record and file a pro se response if she desired to do so. Appel lant did not file a response. 2 Neither did the State favo r us with a brief. Following her open plea of guilty, appellant admitted she was in possession of methamphetamine on July 4, 2003. She also testified she had two prior felony convi ctions dating back to 1981 and 2000. Although cl ean for many years, she admitted to using drugs3

again due to depression and other mental disorders. The focus of her testimony and that of other wi tnesses was about her effort at rehabilitation and her work with church ministries. Sentencing proceedings were delayed almost two months pending a presentence investigation report. Appellant did not appear at the sentencin g hearing and her attorney notified the court that she had contacted him a month earlier and indicated she ha d been sick

. Couns el also announced that bail bond p ersonnel had assured him appellant had been notified of the sentencing date. According to cou nsel, her husband was unaware of her where abouts an d her cel l phone was inop erative. The hearing proceeded without appell an t and the court took judicial notice of her judicial confession. After defense counsel argued appellant’s attempts at rehabilitation, the trial court assessed punishment at two years confinement in a state jail facility. Bythe Anders

brief, counsel raises three arguable grounds, to-wit: (1) potential error in the plea proceedings; (2) sentenci ng appel lant in absentia ; and (3) legality of appellant’s sentence for

a state jail felony. Counsel then concedes after his analysis that no reversible error is presented. As his firstarguable ground, counsel raises potential error in the plea proceedings alleging appel lant did not enter a plea of guilty as required by article 27.13 of the Texas3 Article 27.13 pr ovides i n part, “[a] plea of guilty . . . in a felony case must be made in open court by t he defen dant in p erson . . . . 4 Code of C riminal Procedur e Annota ted (Vern on 1989)

. 3 The following colloquy occurred at the hearing: Court: Ms. Taylor, you’re her e becau se your attorney has indicated to the Court that you want to e nter a plea of guilty today. Is that your understanding of what you’re doing here? Defendan t: Yes, si r. Court: Okay. Do you understand that there is no plea bargain in this case? Defendan t: Yes, si r. Court: Do you understand that what that means is by your entering a plea of guilty today, if I accept your plea of guilty, that you’re basi cally throwin g yourself on the me rcy of theCourt? Defendan t: Yes, si r. Appellant

was then admonished of her rights and informed of the charge against her and range of

punishm ent. Thetr ial cou rt asked, “[u]nderstanding all of that, do you still wantto enter a plea of

guilty”? Appellant responded affirmatively and the court accepted her guilty plea. Any complaint alleging deviation from article 27 .13 should be evaluated under the particular

facts of that case to determine whether the trial court complied with the i ntent of the statute. Costilla v. State, 146 S.W.3 d 213, 27 1 (Tex.C r.App. 20 04). The statute does notrequire an oral p lea by th e defend ant. Id

. See alsoShields v. State, 608 S.W.2d 924, 927 (Tex.Cr.App. [Panel Op.] 1980) (concluding that failure to elicit a verbal guilty plea4 Cf. Tex. Code Crim. Proc. Ann. art. 37.07, § 2(b) & (c) (describi ng assessment of

punishme nt) and a rt. 42.03, § 1(a) (p roviding for prono uncement of senten ce). 5 from the defe ndant di d not invalidate his conv iction w here the trial court com plied w ith the spirit an d letter of article27.13). Applying Costilla’s pronouncement tha t each ca se shoul d be revi ewed und er its particular

facts, we conclude that although appellant never personally

spoke th e words, “I plead guilty,” she answered affirmat ivelywhen asked by the court if she understood the reason for her presen ce at the hearing and, after being admonished, whether sh e still wished to plead guilty. We agree with cou nsel tha t no rever sible er ror is pre sented. Co unsel ne xt suggests possible error in proceeding with the sentencing hearing withoutappellant’s presence

. Among other requirements, article 33.03 of the Code requires a defendant’s presence in all felo ny prosecu tions; however, ab sent evid ence to the contrary, a presumption exists that a defendant was pre sent for the whole trial if the appella te record shows his presence a t the commencement or any portion of the trial. 4 When a defendant voluntarily absents himself from trial after en tering a p lea, the proceeding may continue to its conclusion. Gonzales v. State, 51 5 S.W.2d 920, 921 (Tex.Cr.A pp. 1974 ). A motion for new trial is a prerequisite for a defenda nt to present a complaint on appeal that he was tried in absentia . Tex. R. App. P. 21.3( a). Defe nse counsel filed a timelymotion fo r new tria l alleg ing appe llant wa s unableto attend the sentencing hearing6

due to illness. The motion was not supported by an affidavit reflecting reasonable grounds on which relief could be granted and no hearing was hel d on the motion. See Martinez v. State, 74 S.W.3d 19, 21 (Tex.Cr.App. 2002) (en banc), citing K ing v. State, 29 S.W.3d 556, 569 (Tex .Cr.App. 2 000). Counsel’s assertion that appel lan t was absent at sentencing due to illness was unsupported; the only other reference in the re cord to appellant’s illness was in su pport of a motion for

continuance that had been granted almost a month earlier. Counsel informed the court thatappellant’s husband was unaware of h er whereabouts and she could not be reached on her cell phone. Without evidenceto re fute that appellant’s absence during sentencing was other than voluntary, the trial court’s assessment of punis hment w ithout appellant’s presence will not be dis turbed. See Moore v. State, 670 S.W.2d 259, 261 (Tex.Cr.A pp. 1984 ) (en ban c). Byhis final argument, counsel raises the legali ty of appellant’s sentence. Appellant was convicte d of poss ession of l e ss than one gram of methamphetamine, a state jail felony. See Tex. He alth & S afety Code Annotated § 481.115(a) & (b) (Vernon 2003). The range of punishment for the offense is not more than two years or less than 1 80 days. Tex. Pen. C ode Ann. § 12.35( a) (Verno n 2003). Appell ant’s two year sen tence is not ille gal.

We have also made an independent examination of the entire record to determine whether there are any a rguable grounds w hich mig ht suppor t the app eal. See Penson v.7

Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr. App. 199 1). We ha ve found no such g rounds an d agree w ith counsel that the appeal is frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2 d 577, 57 8 (Tex.C r.App. 19 72). Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed. Don H. Reavis Justice Do not publish.