Billy Don Swinney v. State

• Court: Court of Appeals of Texas
• Decided: March 31, 2010
• Docket: 10-08-00206-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-08-00206-CR

BILLY DON SWINNEY, Appellant v.

THE STATE OF TEXAS, Appellee

From the 413th District Court Johnson County, Texas Trial Court No. F40911

MEMORANDUM OPINION

Billy Don Swinney pled guilty to assault (family violence with a prior

conviction), a third-degree felony, and was sentenced to ten years in prison. The trial

court suspended the sentence and placed Swinney on community supervision for ten

years. The State moved to revoke community supervision, alleging in part that

Swinney subsequently committed the offense of “forgery by possession of a check with

intent to pass” and was convicted and incarcerated for that offense. Swinney pled true to that allegation, and the trial court revoked Swinney’s community supervision and

sentenced him to six years in prison.

Swinney filed a pro se notice of appeal but then appellate counsel was appointed

for him. His appointed counsel filed an Anders brief asserting that he has diligently

reviewed the appellate record and that, in his opinion, the appeal is frivolous. See

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although

informed of his right to do so, Swinney did not file a pro se brief or response. The State

did not file a brief. We will affirm.

In an Anders case, we must, “after a full examination of all the proceedings, []

decide whether the case is wholly frivolous.” Anders, 386 U.S. at 744, 87 S.Ct. at 1400;

accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is

“wholly frivolous” or “without merit” when it “lacks any basis in law or fact.” McCoy

v. Court of Appeals, 486 U.S. 429, 439 n.10, 108 S.Ct. 1895, 1902 n.10, 100 L.Ed.2d 440

(1988).

We have conducted an independent review of the record, and because we find

this appeal to be wholly frivolous, we affirm the judgment. Counsel must send

Swinney a copy of our decision by certified mail, return receipt requested, at Swinney’s

last known address. TEX. R. APP. P. 48.4. Counsel must also notify Swinney of his right

to file a pro se petition for discretionary review. Id.; see also Ex parte Owens, 206 S.W.3d

670, 673-74 (Tex. Crim. App. 2006). We grant counsel’s motion to withdraw, effective

upon counsel’s compliance with the aforementioned notification requirement as

evidenced by “a letter [to this Court] certifying his compliance.” See TEX. R. APP. P. 48.4.

Swinney v. State Page 2 REX D. DAVIS Justice

Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed March 31, 2010 Do not publish [CR25]

Swinney v. State Page 3