James Patrick Fout v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-288-CR
JAMES PATRICK FOUT APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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After waiving a jury and entering an open plea of guilty, appellant James
Patrick Fout appeals his conviction and fifteen-year sentence for aggravated
robbery with a deadly weapon.2 We affirm.
1
… See Tex. R. App. P. 47.4.
2
… See Tex. Penal Code Ann. § 29.03(a)(2) (Vernon 2003).
Appellant’s court-appointed appellate counsel has filed a motion to
withdraw as counsel and a brief in support of that motion. In the brief, counsel
avers that, in his professional opinion, the appeal is frivolous. Counsel’s brief
and motion meet the requirements of Anders v. California 3 by presenting a
professional evaluation of the record demonstrating why there are no arguable
grounds for relief. We gave Appellant the opportunity to file a pro se brief, and
he has filed a motion to abate, which we have construed in the interests of
justice as a supplemental response to counsel’s brief. The State has filed a
letter brief arguing that Appellant’s response should be disregarded as it
contains factual assertions that may not be considered on appeal.
Once an appellant’s court-appointed attorney files a motion to withdraw
on the ground that the appeal is frivolous and fulfills the requirements of
Anders, this court is obligated to undertake an independent examination of the
record. 4 Only then may we grant counsel’s motion to withdraw.5
3
… 386 U.S. 738, 87 S. Ct. 1396 (1967).
4
… See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991);
Mays v. State, 904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no
pet.).
5
… See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351
(1988).
2
We have carefully reviewed the record, counsel’s brief, Appellant’s
supplemental response, and the State’s letter brief. We agree with counsel that
this appeal is wholly frivolous and without merit; we find nothing in the record
that might arguably support the appeal.6 Accordingly, we grant counsel’s
motion to withdraw and affirm the trial court’s judgment.
PER CURIAM
PANEL: LIVINGSTON, C.J.; WALKER and McCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 29, 2010
6
… See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App.
2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App.
2006).
3