George Thomas Swaing v. State ( 2011 )


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  •                              NUMBER 13-11-00284-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    GEORGE THOMAS SWAING,                                                         Appellant,
    v.
    THE STATE OF TEXAS,                                                           Appellee.
    On appeal from the 24th District Court
    of Victoria County, Texas.
    MEMORANDUM OPINION
    Before Justices Rodriguez, Vela, and Perkes
    Memorandum Opinion by Justice Rodriguez
    Appellant George Thomas Swaing appeals from his conviction for the offense of
    arson.    See TEX. PENAL CODE ANN. ' 28.02(a), (d) (West Supp. 2010).              Appellant
    entered a plea of guilty, and on January 4, 2011, the trial court sentenced appellant to five
    years in the Texas Department of Criminal Justice (TDCJ), but suspended his sentence
    and placed him on community supervision for seven years. On March 30, 2011, at a
    revocation hearing, appellant pleaded "not true" to two violations of the terms of his
    community supervision and "true" to one violation. The trial court found that appellant
    had violated two of the terms of his community supervision, granted the State's motion to
    revoke, and sentenced appellant to five years in the TDCJ.
    Concluding that “no reversible error is reflected by the record," counsel filed an
    Anders brief in which he reviewed the merits, or lack thereof, of the appeal. The State
    filed its brief, setting out that it agreed that no reversible errors occurred in the trial of
    appellant's case. We affirm the judgment of the trial court.
    I. COMPLIANCE WITH ANDERS
    Pursuant to Anders v. California, 
    386 U.S. 738
    , 744 (1967), appellant=s
    court-appointed appellate counsel has filed a brief with this Court stating that he has
    diligently reviewed the entire appellate record, researched the law applicable to the facts
    and issues presented, if any, and has concluded, in his professional opinion that this
    appeal is without merit and is frivolous because the record reflects no reversible error.
    Counsel=s brief sets out, in great detail, relevant portions of the record that may provide
    potentially appealable issues. See In re Schulman, 
    252 S.W.3d 403
    , 407 n.9 (Tex. Crim.
    App. 2008) (orig. proceeding) (AIn 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) (en banc).
    2
    In compliance with High v. State, 
    573 S.W.2d 807
    , 813 (Tex. Crim. App. [Panel
    Op.] 1978), appellant's counsel has carefully discussed why, under controlling authority,
    there is no error in the trial court's judgment and why there are no issues for appeal.
    Counsel certified to this Court that he forwarded a copy of his brief to appellant and that
    he has informed appellant of his right to review the record and to file a pro se response.1
    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
    appellant 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, this Court must conduct a full examination of all
    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 we have
    found nothing that would arguably support an appeal. See Bledsoe v. State, 
    178 S.W.3d 824
    , 826-28 (Tex. Crim. App. 2005) (ADue 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.
    1
    The Texas Court of Criminal Appeals has held that Athe pro se response need not comply 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 meritorious issues.@ In re Schulman, 
    252 S.W.3d 403
    , 409 n.23 (Tex. Crim. App. 2008) (orig.
    proceeding) (quoting Wilson v. State, 
    955 S.W.2d 693
    , 696-97 (Tex. App.—Waco 1997, no pet.)).
    3
    IV. MOTION TO WITHDRAW
    In accordance with Anders, appellant's attorney has asked this Court for
    permission to 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.) (noting that A[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 that was carried with the case on September 2, 2011.
    Within five days of the date of this Court=s opinion, counsel is ordered to send a copy of
    the opinion and the judgment to appellant and to advise appellant of his right to file a
    petition for discretionary review.2 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).
    NELDA V. RODRIGUEZ
    Justice
    Do not publish.
    TEX. R. APP. P. 47.2(b).
    Delivered and filed the 17th
    day of November, 2011.
    2
    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
    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. at R.
    68.3. Any petition for discretionary review should comply with the requirements of rule 68.4 of the
    Texas Rules of Appellate Procedure. See 
    id. at R.
    68.4.
    4