                                 IN THE
                         TENTH COURT OF APPEALS

                              No. 10-12-00187-CR

JAMAHL DEZURN,
                                                        Appellant
v.

THE STATE OF TEXAS,
                                                        Appellee


                         From the 52nd District Court
                             Coryell County, Texas
                         Trial Court No. FAM-09-20077


                         MEMORANDUM OPINION


      Jamahl Dominique DeZurn pled guilty to aggravated assault with a deadly

weapon. TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). An adjudication of guilt was

deferred and DeZurn was placed on deferred adjudication community supervision for

five years. Two years later, a motion to adjudicate was filed and DeZurn pled true,

without the benefit of a plea bargain, to the violations contained in the motion to

adjudicate. After a hearing, DeZurn was adjudicated guilty and sentenced to 12 years

in prison. He appeals.
        DeZurn’s appellate attorney filed an Anders brief in this appeal.1 See Anders v.

California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). DeZurn was informed of

his right to submit a brief or other response on his own behalf and submitted a

response.2 However, it did not contain proof of service. The Clerk of this Court warned

DeZurn by letter dated January 7, 2013 that if he did not provide proof of service within

14 days from the date of the letter, we would strike DeZurn’s response. More than 14

days have passed and DeZurn has not provided proof of service for his response.

Accordingly, his response to counsel’s Anders brief is stricken.

        Counsel asserts in the Anders brief that counsel has reviewed the record, the

sentence received by DeZurn, and the factual basis for the sentence and finds that no

non-frivolous issues exist.         Counsel specifically discusses the elements and proof

required for revocation of deferred adjudication, the lack of a separate punishment

hearing, the relevancy of evidence of the original offense, and whether the sentence

assessed was cruel and unusual. Counsel concludes that there are no non-frivolous

issues to assert on appeal. Counsel's brief evidences a professional evaluation of the

record for error, and we conclude that counsel performed the duties required of




1After counsel filed the Anders brief, counsel was hired by the Coryell County District Attorney’s Office.
Another attorney was appointed to represent DeZurn. New counsel has presented a motion to adopt
former counsel’s Anders brief and motion to withdraw.

2New counsel again notified DeZurn of his right to file a response; but we have determined he is not
entitled to a second opportunity due to the change of counsel.

DeZurn v. State                                                                                    Page 2
appointed counsel. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex.

Crim. App. 1978); see also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008).

       In reviewing an Anders appeal, we must, "after a full examination of all the

proceedings, ... decide whether the case is wholly frivolous." See Anders, 386 U.S. at 744;

accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is

"wholly frivolous" or "without merit" when it "lacks any basis in law or fact." McCoy v.

Court of Appeals, 486 U.S. 429, 439 n. 10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988).

Arguments are frivolous when they "cannot conceivably persuade the court." Id. at 436.

An appeal is not wholly frivolous when it is based on "arguable grounds." Stafford, 813

S.W.2d at 511.

       After reviewing counsel’s brief and the entire record in this appeal, we determine

the appeal to be wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim.

App. 2005). Accordingly, we affirm the trial court's judgment.

       Should DeZurn 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 must file a pro se petition for discretionary review.         Any petition for

discretionary review must be filed within thirty days from the date of this opinion or

the last timely motion for rehearing or timely motion for en banc reconsideration was

overruled by this Court. See TEX. R. APP. P. 68.2. Any petition and all copies of the

petition for discretionary review must be filed with the Clerk of the Court of Criminal


DeZurn v. State                                                                      Page 3
Appeals. See TEX. R. APP. P. 68.3. (Tex. Crim. App. 1997, amended eff. Sept. 1, 2011).

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. See also In re

Schulman, 252 S.W.3d at 409 n. 22.

         Counsel's motion to adopt the previously filed Anders brief and motion to

withdraw from representation of DeZurn are granted.             Counsel is permitted to

withdraw from representing DeZurn. Additionally, counsel must send DeZurn a copy

of our decision, notify him of his right to file a pro se petition for discretionary review,

and send this Court a letter certifying counsel's compliance with Texas Rule of

Appellate Procedure 48.4. TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 409

n. 22.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Motion to withdraw granted
Opinion delivered and filed March 14, 2013
Do not publish
[CRPM]




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