Bobby Frederick Bryant v. State ( 2002 )

NO. 07-01-0307-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MARCH 21, 2002

______________________________



BOBBY FREDERICK BRYANT, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 21^ST DISTRICT COURT OF BURLESON COUNTY;

NO. 11,545; HONORABLE J. R. TOWSLEE, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

Appellant Bobby Frederick Bryant appealed the trial court's decision to proceed to adjudication of the offense of burglary of a habitation after he was granted deferred adjudication as the result of a plea bargain. His punishment was assessed at ten years confinement in the Institutional Division of the Department of Criminal Justice.

Appellant's counsel has now filed a motion to withdraw, together with an Anders brief. See Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). In her brief, counsel certifies that after careful examination of the record, she has concluded that appellant's appeal is without merit. Along with her brief, she has supplied a copy of her letter to appellant advising him of the filing of the brief, her conclusion that the appeal is without merit, and of his right to file a pro se brief. Appellant initially indicated he would file a pro se brief and was given an extension of time until January 7, 2002 to do so. We have not received a brief from him, nor has he attempted to get a further extension of time to make such a filing.

In considering counsel's motion to withdraw, we must first satisfy ourselves that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support her client's appeal, and then we must determine whether counsel has correctly concluded the appeal is frivolous. See McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988); High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978). Counsel certifies that she has reviewed the record both as to the question of whether the original plea of guilty was freely and voluntarily given after the necessary admonishments and as to whether there are any arguable grounds for appeal of the adjudication hearing. She concludes that appellant's plea of guilty, waiver, stipulation and judicial confession meet the statutory requirements. She also notes that appellant was informed of the consequences of a violation of his community supervision and that there is no right to appeal from a trial court's determination to proceed with an adjudication of guilt. See Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2002). The record further indicates that a competency evaluation was performed prior to the adjudication hearing and appellant was found competent to stand trial. Although appellant entered a plea of not true to the alleged violations of his community supervision, during his testimony at that hearing, he admitted several violations of the conditions of that community supervision.

We have also made an independent examination of the record to determine whether there are any arguable grounds that might support the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such grounds and agree with counsel that the appeal is without merit and is frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Crim.App. 1974).

Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed.

John T. Boyd

Chief Justice

Do not publish.

n>Miles B. Horton (appellant) filed a notice of appeal from his conviction for driving while intoxicated on December 19, 2007. On December 14, 2007, the trial court signed its certification representing that appellant has the right of appeal. However, the appellate record reflects that appellant failed to sign the certification pursuant to Texas Rule of Appellate Procedure 25.2(d) which requires the certification to be signed by appellant and a copy served on him.

          Consequently, we abate the appeal and remand the cause to the County Court at Law Number Two of Lubbock County (trial court) for further proceedings. Upon remand, the trial court shall take such action necessary to secure and file with this court a certificate of right to appeal that complies with Texas Rule of Appellate Procedure 25.2(d) by March 28, 2008. Should additional time be needed to perform these tasks, the trial court may request same on or before March 28, 2008.

          It is so ordered.

                                                                           Per Curiam

Do not publish.