Matthew D. Henry v. State

Opinion issued April 7, 2011 In The Court of Appeals For The First District of Texas ———————————— NO. 01-09-00324-CR ——————————— Matthew D. Henry, Appellant V. The State of Texas, Appellee On Appeal from the 252nd District Court Jefferson County, [1] Texas Trial Court Case No. 07-00443 MEMORANDUM OPINION Appellant, Matthew D. Henry, without an agreed punishment recommendation from the State, pleaded guilty to the offense of burglary,[2] and the trial court deferred adjudication of his guilt and placed him on community supervision for ten years. The State subsequently filed a motion to adjudicate appellant’s guilt, alleging several violations of the conditions of appellant’s community supervision. After hearing evidence on the motion, the trial court found appellant guilty, assessed his punishment at confinement for ten years, and suspended his sentence subject to the terms of community supervision. The State subsequently filed a motion to revoke appellant’s community supervision, and, at a hearing, appellant pleaded true to the State’s sole allegation that he had failed to report to Adult Probation. The trial court revoked appellant’s community supervision and assessed his punishment at confinement for ten years. Appellant’s counsel on appeal has filed a brief stating that the record presents no reversible error and the appeal is without merit and is frivolous. See Anders v. California, 368 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). The brief meets the requirements of Anders by presenting a professional evaluation of the record and detailing why there are no arguable grounds for reversal. Id.; see also High v. State, 573 S.W.2d 807, 810 (Tex. Crim. App. [Panel Op.] 1978). The brief also reflects that counsel delivered a copy of the brief to appellant and advised appellant of his right to file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). When this court receives an Anders brief from a defendant’s court-appointed appellate counsel, we conduct a review of the entire record to determine whether the appeal is frivolous, i.e., whether it presents any arguable grounds for appeal. See Anders, 386 U.S. at 744, S. Ct. at 1400; Stafford, 813 S.W.2d at 511. An appeal is frivolous when it does not present any argument that could “conceivably persuade the court.” In re Schulman, 252 S.W.3d 403, 407 n.12 (Tex. Crim. App. 2008). In our review, we consider the appellant’s pro se response, if any, to his counsel’s Ander’s brief. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). Appellant did not file a pro se response with this Court. Having reviewed the record and counsel’s brief, we agree that the appeal is frivolous and without merit and that there is no reversible error. See id. We affirm the judgment of the trial court. We grant appellate counsel’s motion to withdraw.[3] See Stephens v. State, 35 S.W.3d 770, 771–72 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (per curiam). PER CURIAM Panel consists of Justices Jennings, Higley, and Brown. Do not publish. Tex. R. App. P. 47.2(b). [1] This appeal, originally filed in the Ninth Court of Appeals, Beaumont, Texas, was transferred to the First Court of Appeals, Houston, Texas. See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005) (giving Texas Supreme Court authority to transfer cases from one court of appeals to another for good cause). [2] See Tex. Penal Code Ann. § 30.02(a)(3), (c)(2) (Vernon Supp. 2010). [3] Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005); Downs v. State, 137 S.W.3d 837, 842 n.2 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).