                                 NO. 07-04-0346-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                    JULY 14, 2005

                         ______________________________


                          JAYMIE B. TAYLOR, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

           FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

       NO. 2003-403292; HONORABLE BRADLEY S. UNDERWOOD, JUDGE

                        _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.


                              MEMORANDUM OPINION


      Pursuant to an open plea of guilty, appellant Jaymie B. Taylor was convicted of

possession of less than one gram of methamphetamine, a state jail felony, and punishment
was assessed at two years confinement. In presenting this appeal, counsel has filed an

Anders1 brief in support of a motion to withdraw. We grant counsel’s motion and affirm.


       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 is no error in the court's judgment. Counsel has also shown that he sent

a copy of the brief to appellant and informed appellant that, in counsel's view, the appeal

is without merit. In addition, counsel has demonstrated that he notified appellant of her

right to review the record and file a pro se response if she desired to do so. Appellant did

not file a response.2 Neither did the State favor 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 convictions

dating back to 1981 and 2000. Although clean for many years, she admitted to using drugs




       1
           Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
       2
       Almost nine months after counsel filed the Anders brief, appellant filed
correspondence complaining she had been punished in absentia. That issue is raised by
counsel and reviewed in this opinion.

                                              2
again due to depression and other mental disorders. The focus of her testimony and that

of other witnesses 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 sentencing hearing and her attorney

notified the court that she had contacted him a month earlier and indicated she had been

sick. Counsel also announced that bail bond personnel had assured him appellant had

been notified of the sentencing date. According to counsel, her husband was unaware of

her whereabouts and her cell phone was inoperative.


       The hearing proceeded without appellant 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.


       By the Anders brief, counsel raises three arguable grounds, to-wit: (1) potential error

in the plea proceedings; (2) sentencing appellant 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 first arguable ground, counsel raises potential error in the plea proceedings

alleging appellant did not enter a plea of guilty as required by article 27.13 of the Texas




                                              3
Code of Criminal Procedure Annotated (Vernon 1989).3 The following colloquy occurred

at the hearing:


       Court: Ms. Taylor, you’re here because your attorney has indicated to the
       Court that you want to enter a plea of guilty today. Is that your understanding
       of what you’re doing here?
       Defendant: Yes, sir.
       Court: Okay. Do you understand that there is no plea bargain in this case?
       Defendant: Yes, sir.
       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 basically throwing
       yourself on the mercy of the Court?
       Defendant: Yes, sir.


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

and range of punishment. The trial court asked, “[u]nderstanding all of that, do you still

want to 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 intent of

the statute. Costilla v. State, 146 S.W.3d 213, 271 (Tex.Cr.App. 2004). The statute does

not require an oral plea by the defendant. Id. See also Shields v. State, 608 S.W.2d 924,

927 (Tex.Cr.App. [Panel Op.] 1980) (concluding that failure to elicit a verbal guilty plea



       3
       Article 27.13 provides in part, “[a] plea of guilty . . . in a felony case must be made
in open court by the defendant in person . . . .

                                              4
from the defendant did not invalidate his conviction where the trial court complied with the

spirit and letter of article 27.13).


       Applying Costilla’s pronouncement that each case should be reviewed under its

particular facts, we conclude that although appellant never personally spoke the words, “I

plead guilty,” she answered affirmatively when asked by the court if she understood the

reason for her presence at the hearing and, after being admonished, whether she still

wished to plead guilty. We agree with counsel that no reversible error is presented.


       Counsel next suggests possible error in proceeding with the sentencing hearing

without appellant’s presence. Among other requirements, article 33.03 of the Code

requires a defendant’s presence in all felony prosecutions; however, absent evidence to

the contrary, a presumption exists that a defendant was present for the whole trial if the

appellate record shows his presence at the commencement or any portion of the trial.4

When a defendant voluntarily absents himself from trial after entering a plea, the

proceeding may continue to its conclusion. Gonzales v. State, 515 S.W.2d 920, 921

(Tex.Cr.App. 1974).


       A motion for new trial is a prerequisite for a defendant to present a complaint on

appeal that he was tried in absentia. Tex. R. App. P. 21.3(a). Defense counsel filed a

timely motion for new trial alleging appellant was unable to attend the sentencing hearing


       4
      Cf. Tex. Code Crim. Proc. Ann. art. 37.07, § 2(b) & (c) (describing assessment of
punishment) and art. 42.03, § 1(a) (providing for pronouncement of sentence).

                                             5
due to illness. The motion was not supported by an affidavit reflecting reasonable grounds

on which relief could be granted and no hearing was held on the motion. See Martinez v.

State, 74 S.W.3d 19, 21 (Tex.Cr.App. 2002) (en banc), citing King v. State, 29 S.W.3d 556,

569 (Tex.Cr.App. 2000).


       Counsel’s assertion that appellant was absent at sentencing due to illness was

unsupported; the only other reference in the record to appellant’s illness was in support of

a motion for continuance that had been granted almost a month earlier. Counsel informed

the court that appellant’s husband was unaware of her whereabouts and she could not be

reached on her cell phone. Without evidence to refute that appellant’s absence during

sentencing was other than voluntary, the trial court’s assessment of punishment without

appellant’s presence will not be disturbed. See Moore v. State, 670 S.W.2d 259, 261

(Tex.Cr.App. 1984) (en banc).


       By his final argument, counsel raises the legality of appellant’s sentence. Appellant

was convicted of possession of less than one gram of methamphetamine, a state jail

felony. See Tex. Health & Safety Code Annotated § 481.115(a) & (b) (Vernon 2003). The

range of punishment for the offense is not more than two years or less than 180 days. Tex.

Pen. Code Ann. § 12.35(a) (Vernon 2003). Appellant’s two year sentence is not illegal.




       We have also made an independent examination of the entire record to determine

whether there are any arguable grounds which might support the appeal. See Penson v.

                                             6
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. 1991). We have found no such grounds and agree with counsel that

the appeal is frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State,

477 S.W.2d 577, 578 (Tex.Cr.App. 1972).


       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.




                                            7
