Shannon Roy Oliver v. State ( 2010 )

NO. 12-09-00275-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
SHANNON ROY OLIVER, § APPEAL FROM THE 2ND
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § CHEROKEE COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Shannon Roy Oliver appeals his conviction for assault. Appellant’s counsel has filed a
brief asserting compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d
493 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We dismiss the
appeal.
BACKGROUND
Appellant pleaded guilty to the offense of assault. As charged, the offense was a third
degree felony because the indictment alleged that the victim was a public servant who was
lawfully discharging an official duty when he was assaulted.1 Appellant entered into a plea
agreement with the State in which he would be placed on community supervision for a period of
seven years in exchange for admitting his guilt. Appellant also agreed to serve thirty days in jail
as a condition of community supervision, and the State agreed to dismiss a charge of evading
arrest or detention. The trial court accepted the plea agreement and sentenced Appellant on May
8, 2003.
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See TEX. PENAL CODE ANN. § 22.01(b)(1) (Vernon Supp. 2009).
In 2005, the State filed a motion to adjudicate Appellant’s guilt in which it alleged that he
was in violation of the terms of his community supervision. In response, the trial court modified
the terms of Appellant’s community supervision. Specifically, the trial court added a
requirement that Appellant take all medications prescribed by his physician and follow his
physician’s instructions. In April 2009, the State again filed to adjudicate Appellant’s guilt. The
State alleged that Appellant committed a new offense and had “failed to avoid injurious or
vicious habits,” each a violation of the terms of his community supervision. Appellant pleaded
not true to the allegations, and the trial court held a hearing. At the conclusion of the hearing, the
trial court found that Appellant had committed a new offense, terminated his community
supervision, and sentenced him to imprisonment for four years. This appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant=s counsel has filed a brief in compliance with Anders and Gainous. Counsel
states that he has diligently reviewed the appellate record and that he is well acquainted with the
facts of this case. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807
(Tex. Crim. App. 1978), counsel=s brief presents a thorough chronological summary of the
procedural history of the case and further states that counsel is unable to present any arguable
issues for appeal. See Anders, 386 U.S. at 745, 87 S. Ct. at 1400; see also Penson v. Ohio, 488
U.S. 75, 80, 109 S. Ct. 346, 350, 102 L. Ed. 2d 300 (1988). We have likewise reviewed the
record for reversible error and have found none.
CONCLUSION
As required, Appellant’s counsel has moved for leave to withdraw. See In re Schulman,
252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d
503, 511 (Tex. Crim. App. 1991). We are in agreement with Appellant’s counsel that the appeal
is wholly frivolous. Accordingly, his motion for leave to withdraw is hereby granted, and we
dismiss this appeal. See In re Schulman, 252 S.W.3d at 408-09 (“After the completion of these
four steps, the court of appeals will either agree that the appeal is wholly frivolous, grant the
attorney=s motion to withdraw, and dismiss the appeal, or it will determine that there may be
plausible grounds for appeal.”).
2
Counsel has a duty to, within five days of the date of this opinion, send a copy of the
opinion and judgment to Appellant and advise him of his right to file a petition for discretionary
review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. 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 he must file a pro se petition for
discretionary review. See In re Schulman, 252 S.W.3d at 408 n.22. 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 that was overruled by this court. See TEX. R. APP. P. 68.2. Any
petition for discretionary review must be filed with this court, after which it will be forwarded to
the Texas Court of Criminal Appeals along with the rest of the filings in this case. See TEX. R.
APP. P. 68.3. 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; In re Schulman, 252
S.W.3d at 408 n.22.
Opinion delivered July 30, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
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