George Thomas Swaing v. State

• Court: Court of Appeals of Texas
• Decided: November 17, 2011
• Docket: 13-11-00284-CR
• Status: Published

Opinion

NUMBER 13-11-00284-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

GEORGE THOMAS SWAING, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court of Victoria County, Texas.

MEMORANDUM OPINION Before Justices Rodriguez, Vela, and Perkes Memorandum Opinion by Justice Rodriguez Appellant George Thomas Swaing appeals from his conviction for the offense of

arson. See TEX. PENAL CODE ANN. ' 28.02(a), (d) (West Supp. 2010). Appellant

entered a plea of guilty, and on January 4, 2011, the trial court sentenced appellant to five

years in the Texas Department of Criminal Justice (TDCJ), but suspended his sentence and placed him on community supervision for seven years. On March 30, 2011, at a

revocation hearing, appellant pleaded "not true" to two violations of the terms of his

community supervision and "true" to one violation. The trial court found that appellant

had violated two of the terms of his community supervision, granted the State's motion to

revoke, and sentenced appellant to five years in the TDCJ.

Concluding that “no reversible error is reflected by the record," counsel filed an

Anders brief in which he reviewed the merits, or lack thereof, of the appeal. The State

filed its brief, setting out that it agreed that no reversible errors occurred in the trial of

appellant's case. We affirm the judgment of the trial court.

I. COMPLIANCE WITH ANDERS

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant=s

court-appointed appellate counsel has filed a brief with this Court stating that he has

diligently reviewed the entire appellate record, researched the law applicable to the facts

and issues presented, if any, and has concluded, in his professional opinion that this

appeal is without merit and is frivolous because the record reflects no reversible error.

Counsel=s brief sets out, in great detail, relevant portions of the record that may provide

potentially appealable issues. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim.

App. 2008) (orig. proceeding) (AIn 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) (en banc).

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

Op.] 1978), appellant's counsel has carefully discussed why, under controlling authority,

there is no error in the trial court's judgment and why there are no issues for appeal.

Counsel certified to this Court that he forwarded a copy of his brief to appellant and that

he has informed appellant of his right to review the record and to file a pro se response.1

See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman,

252 S.W.3d at 409 n.23. More than an adequate period of time has passed, and

appellant has not filed a pro se response. See In re Schulman, 252 S.W.3d at 409.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, this Court must conduct a full examination of all

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

75, 80 (1988). We have reviewed the entire record and counsel's brief, and we have

found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d

824, 826-28 (Tex. Crim. App. 2005) (ADue 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. Accordingly, we affirm the

judgment of the trial court.

1 The Texas Court of Criminal Appeals has held that Athe pro se response need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues.@ In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (orig. proceeding) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)).

3 IV. MOTION TO WITHDRAW

In accordance with Anders, appellant's attorney has asked this Court for

permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744; see also

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

(Tex. App.—Dallas 1995, no pet.) (noting that A[i]f 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@) (citations omitted)). We

grant counsel=s motion to withdraw that was carried with the case on September 2, 2011.

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

the opinion and the judgment to appellant and to advise appellant of his right to file a

petition for discretionary review.2 See TEX. R. APP. P. 48.4; see also In re Schulman, 252

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

NELDA V. RODRIGUEZ Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 17th day of November, 2011. 2 No substitute counsel will be appointed. Should appellant 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 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 or motion for en banc reconsideration that was 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. See id. at R. 68.3. Any petition for discretionary review should comply with the requirements of rule 68.4 of the Texas Rules of Appellate Procedure. See id. at R. 68.4.