Deonte Treshawn Fogle v. State

• Court: Court of Appeals of Texas
• Decided: November 21, 2018
• Docket: 10-18-00185-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-18-00185-CR

DEONTE TRESHAWN FOGLE, Appellant v.

THE STATE OF TEXAS, Appellee

From the 52nd District Court Coryell County, Texas Trial Court No. 17-24101

MEMORANDUM OPINION

Appellant Deonte Treshawn Fogle entered an open plea of guilty to the offense of

continuous sexual abuse of a child and was sentenced to fifty years’ incarceration. Fogle

appeals his conviction and sentence. We affirm the trial court’s judgment.

Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d

493 (1967), Fogle’s court-appointed appellate counsel filed a brief and motion to

withdraw with this Court, stating that his review of the record yielded no grounds of error upon which an appeal can be predicated. Counsel’s brief meets the requirements

of Anders as it presents a professional evaluation demonstrating why there are no

arguable grounds to advance on appeal. See In re Schulman, 252 S.W.3d 403, 406 n.9 (Tex.

Crim. App. 2008) (“In Texas, an Anders brief need not specifically advance ‘arguable’

points of error if counsel finds none, but it must provide record references to the facts

and procedural history and set out pertinent legal authorities.”) (citing Hawkins v. State,

112 S.W.3d 340, 343-44 (Tex. App.—Corpus Christi 2003, no pet.)); Stafford v. State, 813

S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]

1978), Fogle’s counsel has carefully discussed why, under controlling authority, there is

no reversible error in the trial court’s judgment. Counsel has informed this Court that he

has: (1) examined the record and found no arguable grounds to advance on appeal; (2)

served a copy of the brief and counsel’s motion to withdraw on Sanchez; and (3) informed

Sanchez of his right to review the record and to file a pro se response.1 See Anders, 386

U.S. at 744, 87 S.Ct. at 1400; Stafford, 813 S.W.2d at 510 n.3; see also Schulman, 252 S.W.3d

at 409 n.23. More than an adequate period of time has passed, and Fogle has not filed a

pro se response. See Schulman, 252 S.W.3d at 409.

1Counsel has informed this Court that he has provided the appellate record to Fogle. See Kelly v. State, 436 S.W.3d 313, 321-22 (Tex. Crim. App. 2014).

Fogle v. State Page 2 Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.

75, 80, 109 S.Ct. 346, 350, 102 L.Ed.2d 300 (1988). We have reviewed the entire record and

counsel’s brief and have found nothing that would arguably support an appeal. See

Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005) (“Due to the nature of

Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs

and reviewed the record for reversible error but found none, the court of appeals met the

requirement of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. The

judgment of the trial court is therefore affirmed.

In accordance with Anders, Fogle’s attorney has asked this Court for permission to

withdraw as counsel for Fogle. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; see also

Schulman, 252 S.W.3d at 408 n.17 (quoting Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex.

App.—Dallas 1995, no pet.) (“If an attorney believes the appeal is frivolous, he must

withdraw from representing the appellant. To withdraw from representation, the

appointed attorney must file a motion to withdraw accompanied by a brief showing the

appellate court that the appeal is frivolous.”)). We grant counsel’s motion to withdraw.

Within five days of the date of this Court’s opinion, counsel is ordered to send a copy of

this opinion and this Court’s judgment to Fogle and to advise him of his right to file a

Fogle v. State Page 3 petition for discretionary review.2 See TEX. R. APP. P. 48.4; see also Schulman, 252 S.W.3d

at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

REX D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed November 21, 2018 Do not publish [CRPM]

2 No substitute counsel will be appointed. Should Fogle 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 must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of this opinion or from the date the last timely motion for rehearing was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition and all copies of the petition for discretionary review must be filed with the Clerk of the Court of Criminal Appeals. 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; see also Schulman, 252 S.W.3d at 409 n.22.

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