Jason Bradley Fears v. State

• Court: Court of Appeals of Texas
• Decided: July 3, 2009
• Docket: 06-09-00020-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-09-00020-CR ______________________________

JASON BRADLEY FEARS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 7th Judicial District Court Smith County, Texas Trial Court No. 007-0738-07

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

MEMORANDUM OPINION

Jason Bradley Fears appeals from the adjudication of his guilt for the offense of sexual assault of a child. ⁽¹⁾ See Tex. Penal Code Ann. § 22.011 (Vernon Supp. 2008). Fears was sentenced by the trial court to fourteen years' imprisonment. See Tex. Penal Code Ann. § 12.33 (Vernon 2003). Fears was represented by different, appointed counsel at trial and on appeal.

Fears' attorney has filed a brief which discusses the record and reviews the proceedings. 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 requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).

Counsel mailed a copy of the brief to Fears April 27, 2009, informing him of his right to examine the entire appellate record and to file a pro se response. Counsel simultaneously filed a motion with this Court seeking to withdraw as counsel in this appeal. Fears has neither filed a pro se response, nor has he requested an extension of time in which to file such a 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. ⁽²⁾

Josh R. Morriss, III

Chief Justice

Date Submitted: July 2, 2009

Date Decided: July 3, 2009

Do Not Publish

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. 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 Fears in this case. No substitute counsel will be appointed. Should Fears wish to seek further review of this case by the Texas Court of Criminal Appeals, Fears 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 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.

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-09-00108-CR

                                    DAVID HEATH FOUSE, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                         On Appeal from the 8th Judicial District Court

                                                           Hopkins County, Texas

                                                          Trial Court No. 0820356

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                     MEMORANDUM  OPINION

            David Heath Fouse has filed an appeal from six convictions.  Three are for the first- degree felony of aggravated sexual assault on a child (under fourteen—B.P.), and three are for the second-degree felony of sexual assault on a child (under seventeen—R.R. and C.J.).  A single brief has been filed to address all six appeals.  Fouse testified at trial.  He admitted that he was convicted in 1999 of the felony offense of assault on a peace officer and the state-jail felony offense of burglary of a building, and admitted having sexual intercourse with B.P. and C.J.

            This appeal is from his conviction for aggravated sexual assault on a child under fourteen, on B.P.  Fouse’s appellate brief raises no issue, and makes no argument, concerning this conviction.  When a point of error is inadequately briefed, we will not address it.  Vuong v. State, 830 S.W.2d 929 (Tex. Crim. App. 1992).  This situation goes one step beyond simple inadequate briefing.  Points are not merely inadequately briefed, they are not raised at all.  This Court is not the appellant’s advocate.  Although we have an interest in a just adjudication, we also have an interest in remaining impartial.  Ex parte Lowery, 840 S.W.2d 550, 552 n.1 (Tex. App.—Dallas 1992), rev’d on other grounds, 867 S.W.2d 41 (Tex. 1993).  Thus, we will not brief a defendant’s case for him or her.  Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995); see Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008); Lawton v. State, 913 S.W.2d 542, 554 (Tex. Crim. App. 1995), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998).

            Further, the Texas Court of Criminal Appeals has explicitly held that an appellate court cannot reverse a case on a theory not presented to the trial court or raised on appeal.  Gerron v. State, 97 S.W.3d 597 (Tex. Crim. App. 2003); Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002).  With no arguments or theories to support a request for reversal being made in connection with this conviction on appeal, there is nothing before this Court that we may review.

            We affirm the judgment.

                                                                        Josh R. Morriss, III

                                                                        Chief Justice

Date Submitted:          April 28, 2010

Date Decided:             April 29, 2010