                           NUMBER 13-13-00376-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

STEVEN EUGENE FOUST,                                                      Appellant,


                                          v.


THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 15th District Court
                        of Grayson County, Texas.


                        MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Perkes and Longoria
             Memorandum Opinion by Justice Longoria

      Appellant Steven Eugene Foust appeals his convictions for burglary of a habitation

(Count I) and aggravated assault (Count II).    See TEX. PENAL CODE ANN. §§ 30.02,

22.02(a)(2) (West, Westlaw through 2013 3d C.S.). The State tried the case to a jury,
which returned a verdict of guilty on both counts. The jury assessed punishment on both

counts at imprisonment for five years and no fine, to run concurrently. This appeal

followed.1

                                             I. ANDERS BRIEF

        Appellant’s court-appointed appellate counsel has filed a brief and motion to

withdraw with this Court pursuant to Anders v. California, 386 U.S. 738, 744 (1967),

stating that his review of the record yielded no grounds of error upon which to base an

appeal. Counsel’s brief meets the requirements of Anders as it presents a professional

evaluation demonstrating why there are no arguable grounds to advance on appeal. See

In re Schulman, 252 S.W.3d 403, 406 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 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, 507 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978) and Kelly v. State, No. PD-0702-13, 2014 WL 2865901, at *3 (Tex. Crim. App.

June 25, 2014), appellant’s counsel carefully discussed why, under controlling authority,

there is no reversible error in the trial court’s judgment. Counsel has informed this Court

that he has: (1) examined the record and found no arguable grounds to advance on

appeal;2 (2) provided appellant with a copy of the Anders brief, the motion to withdraw,


        1This case is before this Court on transfer from the Fifth Court of Appeals in Dallas pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through 3d C.S. 2013).

        2 Counsel stated that he specifically considered the following issues: whether (1) the State
produced legally sufficient evidence to support the convictions; (2) punishing appellant on both counts
violated the state and federal constitutional protections against double jeopardy; (3) the punishment

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and a copy of the appellate record;3 (3) informed appellant of his right to file a pro se

response and seek discretionary review if the court of appeals concludes that the appeal

is frivolous. See Anders, 386 U.S. at 744; Kelly, 2014 WL 2865901, at *3; Stafford, 813

S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. Appellant filed a

pro se brief arguing that his appeal is meritorious because the evidence is insufficient to

support the judgment.4

                                          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). After thoroughly reviewing the record, court-appointed counsel’s brief, and

the issues raised in the pro se response, we have found nothing that would arguably

support an appeal. See Bledsoe, 178 S.W.3d at 827–28 (“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”). We agree that there is no

reversible error. Accordingly, the judgment of the trial court is affirmed.

                                          III. MOTION TO WITHDRAW

        In accordance with Anders, appellant’s attorney asked this Court for permission to




assessed by the jury violated the constitutional protections against cruel and unusual punishment.
        3
        By serving appellant with a copy of the appellate record, counsel already complied with the new
Anders duty imposed by the Texas Court of Criminal Appeals in Kelly v. State, No. PD-0702-13, 2014 WL
2865901, at *3 (Tex. Crim. App. June 25, 2014).

         4 Appellant asserted that the owner of the house which he allegedly burglarized, Mr. Green,

tampered with evidence and falsely claimed to be injured in the attack, but appellant provided no evidence
of this assertion. Appellant further argued that the trial court erred “in not making any additional finding of
fact,” but appellant did not explain further.

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withdraw as counsel for appellant. 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.) (“[I]f 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.

Counsel is ordered to send a copy of this opinion and this Court’s judgment to appellant

within five days of the date of this Court’s opinion, and to advise him of his right to file a

petition for discretionary review with the court of criminal appeals.5 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).



                                                            /s/ Nora L. Longoria
                                                            NORA L. LONGORIA
                                                            Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
21st day of August, 2014.




        5   No substitute counsel will be appointed. 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 file a pro se petition for discretionary review. 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 or timely motion
for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for
discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals. See id. R. 68.3.
Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate
Procedure 68.4. Id. R. 68.4.

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