                                 NO. 12-16-00012-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

RANDY VERNON WINCHESTER,                       §         APPEAL FROM THE 114TH
APPELLANT

V.                                             §         JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                       §         SMITH COUNTY, TEXAS

                                 MEMORANDUM OPINION
                                     PER CURIAM
       Randy Vernon Winchester 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). Appellant filed a pro se brief. We affirm.


                                        BACKGROUND
       Appellant was charged by indictment with the offense of aggravated assault with a deadly
weapon, a second degree felony. The indictment also included an allegation that Appellant used
or exhibited a deadly weapon, a firearm, during the commission of or immediate flight from the
offense. Appellant pleaded “guilty” to the offense charged in the indictment. Appellant and his
counsel signed various documents in connection with his guilty plea, including a stipulation of
evidence in which Appellant swore, and judicially confessed, that the facts alleged in the
indictment were true and correct, and constituted the evidence in the case. The trial court
accepted Appellant’s plea, found the evidence was sufficient to support a finding of Appellant’s
guilt, deferred further proceedings without entering an adjudication of guilt, and ordered that
Appellant be placed on deferred adjudication community supervision for six years.
       Later, the State filed a first amended application to proceed to final adjudication, alleging
that Appellant had violated the terms of his community supervision. At the hearing, Appellant
pleaded “true” to all the allegations in the State’s application. After a hearing, the trial court
found the allegations to be “true,” granted the State’s application, adjudged Appellant guilty of
aggravated assault with a deadly weapon, made an affirmative finding that Appellant used or
exhibited a deadly weapon, a firearm, during the commission of or immediate flight from the
offense, and assessed his punishment at twelve years of imprisonment. 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 counsel’s brief, it is apparent that 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.
       In Appellant’s pro se brief, he presents seven issues. He argues that two allegations in
the State’s first amended application were dismissed in a previous application or “randomly
added,” violating the rule against double jeopardy. Appellant also contends that the indictment
was false because there was no evidence that he pointed a firearm at the victim, the indictment
does not follow the evidence in the presentence investigation, and he was originally charged with
a different offense, aggravated assault causing serious bodily injury. He argues that the State
alleged that he declined to submit a written statement, but that a law enforcement report shows
that he agreed to write a statement. Appellant contends further that the allegation that he did not
complete the substance abuse felony punishment (SAFP) program was not true. He states that he
completed SAFP, but did not complete the continuum of care program. Finally, Appellant
argues that his trial counsel rendered ineffective assistance because he failed to submit medical
records into evidence during the State’s cross-examination of Appellant.
       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).




                                                  2
                                                  CONCLUSION
         As required, Appellant’s counsel has moved for leave to withdraw in the case. 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 are in agreement with Appellant’s counsel
that the appeal is wholly frivolous.             Accordingly, we grant counsel’s motion for leave to
withdraw, and affirm the trial court’s judgment. See TEX. R. APP. P. 43.2.
         Counsel has a duty to, within five days of the date of this opinion, send a copy of the
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
day the last timely motion for rehearing was overruled by this court. See TEX. R. APP. P. 68.2(a).
Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals.
See TEX. R. APP. P. 68.3.            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.
Opinion delivered July 29, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




                                                          3
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JULY 29, 2016


                                         NO. 12-16-00012-CR


                               RANDY VERNON WINCHESTER,
                                        Appellant
                                           V.
                                  THE STATE OF TEXAS,
                                        Appellee


                                Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No. 114-0615-13)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    By per curiam opinion.
                    Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
