Donald Wayne Spicer, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: March 22, 2011
• Docket: 06-10-00181-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________

No. 06-10-00181-CR ______________________________

DONALD WAYNE SPICER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 159th Judicial District Court Angelina County, Texas Trial Court No. 21,024

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION

Donald Wayne Spicer, Jr., was originally placed on deferred adjudication community

supervision in Angelina County1 in connection with the alleged offense of aggravated sexual

assault of a child in 1999. See TEX. PENAL CODE ANN. § 22.021 (Vernon Supp. 2010). In 2007,

Spicer was adjudicated guilty of the offense, but again placed on community supervision.

Now, in this proceeding, Spicer’s community supervision has been revoked, not based on

any contention that he has committed any further offense, but for viewing pornography, cleaning

the hard drive on his computer, having incidental contact with children under age seventeen,

failing to pay six months of supervision fees, failing to be employed, and failing to attend

counseling one month. After Spicer pled “true” to the allegations, the trial court found the

allegations true and sentenced Spicer to ten years’ incarceration. Spicer appeals that revocation.

Spicer’s attorney on appeal2 has filed a brief which discusses the record and reviews the

proceedings in detail. He has set up several potential arguments and explained in detail why each

fails to show a reversible error. Counsel has thus provided a professional evaluation of the record

demonstrating why, in effect, there are no arguable grounds to be advanced. This meets the

1 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3. 2 In this proceeding, Spicer was represented by different appointed counsel at trial and on appeal.

2 requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503

(Tex. Crim. App. 1981); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).

Counsel mailed a copy of the brief to Spicer January 8, 2011, informing Spicer of his right

to file a pro se response and to review the record. Counsel has also filed a motion with this Court

seeking to withdraw as counsel in this appeal. Spicer has neither filed a pro se response, nor has

he requested an extension of time in which to file such response.

We have determined that this appeal is wholly frivolous. We have independently

reviewed the clerk’s record and the reporter’s record, and we agree that no arguable issues support

an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).

In a frivolous appeal situation, we are to determine whether the appeal is without merit and

is frivolous, and if so, the appeal must be dismissed or affirmed. See Anders, 386 U.S. 738.

We affirm the judgment of the trial court.3

Josh R. Morriss, III Chief Justice

3 Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request to withdraw from further representation of appellant in this case. No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, appellant must either retain an attorney to file a petition for discretionary review or appellant 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 this opinion or the last timely motion for rehearing that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case. 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.

3 Date Submitted: March 21, 2011 Date Decided: March 22, 2011

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