Opinion
No. 10-08-00206-CR
Opinion delivered and filed March 31, 2010. DO NOT PUBLISH.
Appealed from the 413th District Court, Johnson County, Texas, Trial Court No. F40911. Affirmed.
Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
MEMORANDUM OPINION
Billy Don Swinney pled guilty to assault (family violence with a prior conviction), a third-degree felony, and was sentenced to ten years in prison. The trial court suspended the sentence and placed Swinney on community supervision for ten years. The State moved to revoke community supervision, alleging in part that Swinney subsequently committed the offense of "forgery by possession of a check with intent to pass" and was convicted and incarcerated for that offense. Swinney pled true to that allegation, and the trial court revoked Swinney's community supervision and sentenced him to six years in prison. Swinney filed a pro se notice of appeal but then appellate counsel was appointed for him. His appointed counsel filed an Anders brief asserting that he has diligently reviewed the appellate record and that, in his opinion, the appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although informed of his right to do so, Swinney did not file a pro se brief or response. The State did not file a brief. We will affirm. In an Anders case, we must, "after a full examination of all the proceedings, [] decide whether the case is wholly frivolous." Anders, 386 U.S. at 744, 87 S.Ct. at 1400; 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, 1902 n. 10, 100 L.Ed.2d 440 (1988). We have conducted an independent review of the record, and because we find this appeal to be wholly frivolous, we affirm the judgment. Counsel must send Swinney a copy of our decision by certified mail, return receipt requested, at Swinney's last known address. TEX. R. APP. P. 48.4. Counsel must also notify Swinney of his right to file a pro se petition for discretionary review. Id.; see also Ex parte Owens, 206 S.W.3d 670, 673-74 (Tex. Crim. App. 2006). We grant counsel's motion to withdraw, effective upon counsel's compliance with the aforementioned notification requirement as evidenced by "a letter [to this Court] certifying his compliance." See TEX. R. APP. P. 48.4.