Steven Eugene Foust v. State

Opinion

NUMBER 13-13-00376-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG STEVEN EUGENE FOUST, Appellant, v.

THE STATE OF TEXAS, Appellee.

On appeal from the 15th District Court of Grayson County, Texas.

ORDER

Before Chief Justice Valdez and Justices Perkes and Longoria Order Per Curiam1

Appellant, Steven Eugene Foust, was charged by indictment with burglary of a

habitation (Count I) and assault with a deadly weapon (Count II). The case was tried to

1This case is before this Court on transfer from the Fifth Court of Appeals in Dallas pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through 3d C.S. 2013).

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a jury, which returned a verdict of guilty on both counts and found that appellant used or exhibited a deadly weapon during the course of the burglary. On both counts, the jury assessed punishment at five years’ imprisonment and no fine. Appellate counsel filed an Anders brief concluding that the appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744 (1967). On May 15, 2014, we issued an order striking the brief for a defect of form and directing counsel to file an amended brief addressing the defect. See Wilson v. State, 40 S.W.3d 192, 199 (Tex. App.—Texarkana 2001, no pet.) (“Deficiencies of form include technical violations of the Anders requirements . . . but also include the failure to discuss issues appearing prominently in the record.”). Appellant’s counsel has sent this Court a second amended brief that addresses the defect in form and that contains the standard prayer for relief in Anders cases, but omits what counsel included in his first brief: citations to the Anders rule and counsel’s conclusion under Anders that the appeal is frivolous, counsel’s professional review of the full record (not just the issue we identified in our prior order) that Anders requires, and a certificate of service indicating that the counsel served the brief on both the State and appellant. 2 Accordingly, counsel’s motion for leave to file his second amended brief is DENIED. We order counsel to file a third amended brief within fourteen days of the date of this order that fully complies with the Texas Rules of Appellate Procedure and the requirements of Anders.3 Motions for extension of time will not be favorably entertained

2 We note that counsel provided appellant with a copy of the record with counsel’s first brief and

appellant filed a pro se response. Counsel has therefore already complied with the new Anders requirement that the Texas Court of Criminal Appeals announced in Kelly v. State, PD-0702-13, 2014 WL 2865901, at **3–4 (Tex. Crim. App. June 25, 2014).

3 This includes, but is not limited to: citation to the rule of Anders v. California, 386 U.S. 738, 744 (1967) and counsel’s conclusion under Anders that the appeal is frivolous, counsel’s professional review of the full record; the additional issue that counsel addressed in his second brief; a certificate of service stating

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absent extraordinary circumstances.

IT IS SO ORDERED PER CURIAM

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

Delivered and filed the 9th day of July, 2014.

that counsel has served the new brief on both the State and appellant; and a certificate of compliance. See TEX. R. APP. P. 38.1, 9.4(i)(3).