Timothy Joe Ferch v. State

• Court: Court of Appeals of Texas
• Decided: September 7, 2011
• Docket: 10-11-00069-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-11-00069-CR

TIMOTHY JOE FERCH, Appellant v.

THE STATE OF TEXAS, Appellee

From the 220th District Court Bosque County, Texas Trial Court No. 11-01-13865-BCCF

MEMORANDUM OPINION

Timothy Joe Ferch pled guilty to the offense of Possession of a Controlled

Substance, Cocaine, in an amount greater than 4 grams but less than 200 grams. See

TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West 2010). He was sentenced to seven

years in prison, but the sentence was probated and Ferch was place on community

supervision for seven years. The State filed a motion to revoke Ferch’s community

supervision, and Ferch pled true to all counts of the State’s motion. After a hearing, the

trial court found Ferch violated his terms of community supervision and sentenced him

to seven years in prison. Ferch appeals, and we affirm. Ferch’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). Ferch was informed of his

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

Counsel asserts that she reviewed the entire record and reviews whether the trial

court abused its discretion in revoking Ferch’s community supervision and sentencing

Ferch to seven years in prison. Counsel concludes that she 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.

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.

Ferch v. State Page 2 Should Ferch 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 this opinion or

the last timely motion for rehearing or timely motion for en banc reconsideration was

overruled by this Court. See TEX. R. APP. P. 68.2. Any petition and all copies of the

petition for discretionary review must be filed with the Clerk of the Court of Criminal

Appeals. See TEX. R. APP. P. 68.3 (Tex. Crim. App. 1997, amended eff. Sept. 1, 2011).

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 she be allowed to withdraw from representation of Ferch

is granted. Additionally, counsel must send Ferch 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

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed September 7, 2011 Do not publish [CR25]

Ferch v. State Page 3