Smith
v.
State

This case is not covered by Casetext's citator
Fourth Court of Appeals San Antonio, TexasDec 4, 2018
No. 04-17-00813-CR (Tex. App. Dec. 4, 2018)

No. 04-17-00813-CR

12-05-2018

Troy Dewitt SMITH, Appellant v. The STATE of Texas, Appellee


MEMORANDUM OPINION

From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2008CR11681C
Honorable Pat Priest, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice AFFIRMED

On November 12, 2009, Appellant Troy Smith entered a plea of guilty to the offense of aggravated robbery; the trial court deferred a finding of guilt and placed Smith on deferred adjudication probation for a period of ten years.

On November 13, 2017, Smith entered a plea of true to three alleged violations of the conditions of his probation and not true to the fourth alleged violation. After a contested hearing, the trial court found the State proved all four alleged violations, found Smith guilty of the underlying aggravated robbery, and assessed punishment at fifteen years' confinement in the Institutional Division of the Texas Department of Criminal Justice. This appeal ensued.

COURT-APPOINTED APPELLATE COUNSEL'S ANDERS BRIEF

Smith's court-appointed appellate attorney filed a brief containing a professional evaluation of the record in accordance with Anders v. California, 386 U.S. 738 (1967); counsel also filed a motion to withdraw. In appellate counsel's brief, he recites the relevant facts with citations to the record, analyzes the record with respect to allegations and the evidence presented at trial, and accompanies the analysis with relevant legal authorities. Counsel concludes the appeal is frivolous and without merit. See Nichols v. State, 954 S.W.2d 83, 85 (Tex. App.—San Antonio 1997, no pet.).

We conclude the brief meets the Anders requirements. See Anders, 386 U.S. at 744; see also High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978); Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Counsel provided Smith with copies of the briefs and counsel's motion to withdraw, and informed Smith of his right to review the record and file a pro se brief. See Nichols, 954 S.W.2d at 85-86; see also Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.). This court also advised Smith of his right to request a copy of the record and file a brief. See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014). No additional briefing was filed in this court.

CONCLUSION

Having reviewed the entire record and court-appointed counsel's Anders brief, we agree with Smith's court-appointed appellate counsel that there are no arguable grounds for appeal and the appeal is wholly frivolous and without merit. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We affirm the trial court's judgment and grant appellate counsel's motion to withdraw. See Nichols, 954 S.W.2d at 85-86; Bruns, 924 S.W.2d at 177 n.1.

No substitute counsel will be appointed. Should Smith 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. Any petition for discretionary review must be filed within thirty days from the date of either (1) this opinion or (2) the last timely motion for rehearing or motion for en banc reconsideration is 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. Id. R. 68.3(a). Any petition for discretionary review must comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. Id. R. 68.4.

Patricia O. Alvarez, Justice DO NOT PUBLISH