                                  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).
                                                       2
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.)).
                                                     3
                                          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.



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