Marcus Cain v. State

• Court: Court of Appeals of Texas
• Decided: August 3, 2011
• Docket: 10-10-00412-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-10-00412-CR

MARCUS CAIN, Appellant v.

THE STATE OF TEXAS, Appellee

From the 52nd District Court Coryell County, Texas Trial Court No. FAM-07-18831

MEMORANDUM OPINION

Marcus LaSean Cain pled guilty to the offense of Aggravated Assault with a

Deadly Weapon and was placed on deferred adjudication community supervision for

10 years. See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). The State filed a motion

to adjudicate guilt and revoke Cain’s community supervision. Cain pled true to two

counts of the State’s motion and not true to two counts of the motion. After a hearing,

the trial court adjudicated Cain guilty and sentenced him to ten years in prison. Cain

appeals, and we affirm. Cain’s appellate attorney filed an Anders brief in this appeal. See Anders v.

California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Cain was informed of his

right to submit a brief on his own behalf, but he did not file a brief.

Counsel's brief reviews (1) the sufficiency of the indictment, (2) whether there

were any adverse rulings before, during, or after the trial on objections or motions, (3)

the sufficiency of the evidence, (4) the imposition of the sentence, and (5) whether there

were any other errors rising to the level of plain error. After these reviews, counsel

concludes that he can find nothing in the record which might arguably support an

appeal. Counsel's brief evidences a professional evaluation of the record for error, and

we conclude that counsel performed the duties required of appointed counsel. See

Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also

In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008).

In reviewing an Anders appeal, we must, "after a full examination of all the

proceedings, … decide whether the case is wholly frivolous." See Anders, 386 U.S. at

744; 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, 100 L. Ed. 2d 440 (1988).

Arguments are frivolous when they "cannot conceivably persuade the court." Id. at 436.

An appeal is not wholly frivolous when it is based on "arguable grounds." Stafford, 813

S.W.2d at 511.

Cain v. State Page 2 After a review of the entire record in this appeal, we determine the appeal to be

wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).

Accordingly, we affirm the trial court's judgment.

Should Cain 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 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. See also In re Schulman, 252 S.W.3d at 409

n.22.

Counsel's request that he be allowed to withdraw from representation of Cain is

granted. Additionally, counsel must send Cain a copy of our decision, notify him of his

right to file a pro se petition for discretionary review, and send this Court a letter

certifying counsel's compliance with Texas Rule of Appellate Procedure 48.4. TEX. R.

APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 409 n.22.

TOM GRAY Chief Justice

Cain v. State Page 3 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed August 3, 2011 Do not publish [CR25]

Cain v. State Page 4