Anthony Dwayne Baston v. State

Opinion

NO. 07-11-00438-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JULY 12, 2012

ANTHONY BASTON, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

FROM THE 31ST DISTRICT COURT OF GRAY COUNTY;

NO. 7908; HONORABLE STEVEN RAY EMMERT, JUDGE

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant Anthony Baston appeals from the trial court’s judgment adjudicating

him guilty of the offense of Deadly Conduct Discharging a Firearm,1 revoking his

deferred adjudication community supervision, and sentencing him to a term of

imprisonment of six years. His counsel has filed a motion to withdraw supported by an

1 See Tex. Penal Code Ann. § 22.05 (West 2012). This is a third degree felony, punishable by imprisonment for any term of not more than 10 years or less than 2 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.34 (West 2011). Anders2 brief. We will grant counsel’s motion to withdraw and affirm the judgment of the

trial court.

In April 2008, a Gray County grand jury indicted appellant for deadly conduct,

discharging a firearm. In February 2010, appellant plead guilty to the charged offense

and, as part of a plea bargain, the trial court placed him on deferred adjudication

community supervision for a term of five years. His community supervision was subject

to certain terms and conditions.

In October 2010, the State filed a motion to proceed with an adjudication of guilt,

alleging appellant violated numerous conditions of his community supervision. In

October 2011, the court held a hearing in which appellant’s probation officer testified.

She testified appellant failed to report to her in March, July and August of 2010 and

failed to pay required fines and complete ordered community service. A deputy also

testified he reviewed appellant’s criminal history and recognized the State’s exhibit as

one of appellant’s criminal convictions.

Appellant testified on his own behalf. He admitted he was convicted of the state

jail felony of burglary of a building while on community supervision and received a thirty

day sentence. He also admitted to drinking alcohol, a violation of his community

supervision. He also told the court he had forgotten that when his community

supervision was transferred to Lubbock County, he was still required to report by mail to

the probation office in Gray County. Lastly, he testified he was unemployed while in

2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); see In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008) (orig. proceeding).

2 Lubbock County and could not pay the fine and costs ordered as part of his community

supervision.

At the conclusion of the hearing, the court determined appellant violated five

provisions of his community supervision order. The court adjudicated appellant guilty of

the indicted offense, revoked his community supervision, and sentenced him to six

years of imprisonment.

Appellant’s appointed counsel has filed a brief with this Court stating that after an

exhaustive review of the record, he has found nothing therein that raises an arguable

issue for appeal.

In conformity with the standards set out by the United States Supreme Court, we

will not rule on the motion to withdraw until we have independently examined the record.

Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.--San Antonio 1997, no pet.). If this court

determines the appeal arguably has merit, we will remand it to the trial court for

appointment of new counsel. Stafford v. State, 813 S.W.2d 503, 511

(Tex.Crim.App.1991). We have reviewed the entire record to determine whether there

are any arguable grounds which might support an appeal. See Penson v. Ohio, 488

U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824

(Tex.Crim.App. 2005). We have found no such arguable grounds supporting a claim of

reversible error, and agree with counsel that the appeal is frivolous.

3 Accordingly, we grant counsel's motion to withdraw3 and affirm the judgment of

the trial court.

James T. Campbell Justice

Do not publish.

3 Counsel shall, within five days after the opinion is handed down, send his client a copy of the opinion and judgment, along with notification of the defendant’s right to file a pro se petition for discretionary review. Tex. R. App. P. 48.4.