NUMBER 13-10-00172-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOHN FOUTZ, Appellant,
v. THE STATE OF TEXAS, Appellee.
On appeal from the 252nd District Court of Jefferson County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Yañez and Garza Memorandum Opinion by Chief Justice Valdez
Appellant, John Foutz, was charged with the offense of aggravated assault, a second-degree felony. See TEX . PENAL CODE ANN . § 22.02(a)(2), (b) (Vernon Supp. 2009). Pursuant to a plea agreement, Foutz pleaded guilty to the offense and “true” to an enhancement paragraph contained in the indictment.1 The trial court accepted Foutz’s
1 The enhancem ent paragraph contained in the indictm ent alleged that Foutz had been previously convicted of felony possession of a controlled substance on Decem ber 18, 2006. See T EX . H EALTH & S AFETY C OD E A N N . § 481.115 (Vernon 2010).
pleas and sentenced him to eight years’ incarceration; however, the sentence was suspended, and Foutz was placed on community supervision for eight years with a $1,000 fine.2
On February 2, 2010, the State filed a motion to revoke Foutz’s community supervision, alleging that he had violated three conditions of his community supervision.3 At a hearing conducted on February 16, 2010, Foutz pleaded “true” to all of the allegations contained in the motion to revoke, and the trial court subsequently sentenced Foutz to fifteen years’ incarceration in the Institutional Division of the Texas Department of Criminal Justice. The trial court certified Foutz’s right to appeal, and this appeal followed.4 We affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), Foutz’s court-appointed appellate counsel has filed a brief with this Court stating that her review of the record yielded no grounds or error upon which an appeal can be predicated in this case. Although counsel’s brief does not advance any arguable grounds of error, it does present a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced in this appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“In Texas, an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities.”) (citing Hawkins v. State, 112
2 The trial court also concluded that Foutz had used a deadly weapon, though not a firearm , in the com m ission of the underlying offense. See T EX . P EN AL C OD E A N N . § 22.02(a)(2) (Vernon Supp. 2009).
3 The State alleged that Foutz had failed to com plete 800 hours of com m unity service, failed to com plete an anger m anagem ent class, and failed to pay various fines and fees that had been court-ordered.
4 This appeal was transferred to this Court from the Ninth Court of Appeals pursuant to a docket- equalization order issued by the Texas Suprem e Court. See T EX . G O V ’T C OD E A N N . § 73.001 (Vernon 2005).
S.W.3d 340, 343-44 (Tex. App.–Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), Foutz's counsel has carefully discussed why, under controlling authority, there are no errors in the trial court's judgment. Counsel has informed this Court that she has: (1) examined the record and found no arguable grounds to advance in this appeal, (2) served a copy of the brief and counsel’s motion to withdraw on Foutz, and (3) informed Foutz of his right to review the record and to file a pro se response.5 See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. More than an adequate period of time has passed, and Foutz has not filed a pro se response. See In re Schulman, 252 S.W.3d at 409.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). We have reviewed the entire record and counsel's brief and have found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. Accordingly, we affirm the judgment of the trial court.
5 The Texas Court of Crim inal Appeals has held that “the pro se response need not com ply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any m eritorious issues.” In re Schulman, 252 S.W .3d 403, 409 n.23 (Tex. Crim . App. 2008) (quoting W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App.–W aco 1997, no pet.)).
III. MOTION TO WITHDRAW
In accordance with Anders, Foutz’s attorney has asked this Court for permission to withdraw as counsel. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex. App.–Dallas 1995, no pet.) (“If an attorney believes the appeal is frivolous, he must withdraw from representing the appellant. To withdraw from representation, the appointed attorney must file a motion to withdraw accompanied by a brief showing the appellate court that the appeal is frivolous.”) (citations omitted)). We grant counsel’s motion to withdraw. Within five days of the date of this Court’s opinion, counsel is ordered to send a copy of the opinion and judgment to Foutz and advise him of his right to file a petition for discretionary review.6 See TEX . R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
________________________ ROGELIO VALDEZ Chief Justice
Do not publish. TEX . R. APP. P. 47.2(b) Delivered and filed the 19th day of August, 2010.
6 No substitute counsel will be appointed. Should Foutz wish to seek further review of this case by the Texas Court of Crim inal Appeals, he m ust either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review m ust be filed within thirty days from the date of either this opinion or the last tim ely m otion for rehearing that was overruled by this Court. See T EX . R. A PP . P. 68.2. Any petition for discretionary review m ust be filed with this Court, after which it will be forwarded to the Texas C ourt of C rim inal Appeals. See T EX . R. A PP . P. 68.3; 68.7. Any petition for discretionary review should com ply with the requirem ents of Rule 68.4 of the Texas Rules of Appellate Procedure. See T EX . R. A PP . P. 68.4.