                                     NO. 12-09-00452-CR

                          IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

KALUB SCOTT BUDENBENDER,                            §                APPEAL FROM THE 114TH
APPELLANT

V.                                                  §                JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                            §                SMITH COUNTY, TEXAS


                                       MEMORANDUM OPINION
                                           PER CURIAM
       Kalub Scott Budenbender appeals his conviction for aggravated assault with a deadly
weapon. 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. Crim.
App. 1969). We dismiss Appellant=s appeal.


                                                BACKGROUND
       Appellant was charged by indictment with the offense of aggravated assault with a deadly
weapon, a second degree felony.1 The indictment also alleged that Appellant used or exhibited a
deadly weapon 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 Atrue@ to
the deadly weapon allegation.            Appellant and his counsel signed an agreed punishment
recommendation, an acknowledgment of admonishments, a waiver of jury trial, an agreement to
stipulate testimony, and a stipulation of evidence in which Appellant swore that all allegations

       1
           See TEX. PENAL CODE ANN. § 22.02(a)(1), (2), (b) (Vernon Supp. 2010).
pleaded in the indictment were true and correct. He also judicially confessed to the offense
alleged in the indictment. However, Appellant did not waive his right to appeal.
         After a punishment hearing, the trial court adjudged Appellant guilty of aggravated
assault with a deadly weapon, made an affirmative deadly weapon finding, and assessed his
punishment at twelve years of imprisonment, court costs, and restitution.2 This appeal followed.


                             ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
         Appellant=s counsel filed 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
review of Appellant=s brief, it is apparent that his 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 the procedural history of the
case, and further states that counsel is unable to raise any arguable issues for appeal. 3 We have
reviewed the record for reversible error and have found none. See Bledsoe v. State, 178 S.W.3d
824, 826-27 (Tex. Crim. App. 2005).




                                                   CONCLUSION
         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 agree with Appellant=s counsel that the appeal is wholly
frivolous and his motion for leave to withdraw is hereby granted. See In re Schulman, 252
S.W.3d at 408-09.
         Counsel has a duty to, within five days of the date of this opinion, send a copy of the

         2
          An individual adjudged guilty of a second degree felony shall be punished by imprisonment for any term
of not more than twenty years or less than two years and, in addition, a fine not to exceed $10,000. See TEX. PENAL
CODE ANN. § 12.33 (Vernon Supp. 2010).
         3
           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 his own brief, but the time for
filing such a brief has expired and we have received no pro se brief.

                                                          2
opinion and judgment to Appellant and advise him of his right to file a petition for discretionary
review. See TEX. R. APP. 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 review 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 TEX. R. APP. P. 68.2. Any
petition for discretionary review must be filed with this court, after which it will be forwarded to
the Texas Court of Criminal Appeals along with the rest of the filings in this case. See TEX. R.
APP. P. 68.3; In re Schulman, 252 S.W.3d at 408 n.22. Any petition for discretionary review
should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure.
See TEX. R. APP. P. 68.4; In re Schulman, 252 S.W.3d at 408 n.22.


                                                    DISPOSITION
         We dismiss Appellant=s appeal.
Opinion delivered March 31, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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