Tyree v. State

Full title: MATHEW BARBOSA TYREE, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Jul 6, 2005

No. 10-04-00171-CR (Tex. App. Jul. 6, 2005)

Opinion

No. 10-04-00171-CR

Opinion Delivered and Filed July 6, 2005. DO NOT PUBLISH.

Appeal from the 248th District Court, Harris County, Texas, Trial Court No. 9418625. Affirmed.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

MEMORANDUM OPINION

TOM GRAY, Chief Justice.

Tyree appeals the revocation of his deferred-adjudication community supervision for aggravated robbery. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5 (Vernon Supp. 2004-2005); TEX. PENAL CODE ANN. § 29.03(a) (Vernon 2003). Tyree's counsel filed an Anders brief. See Anders v. California, 386 U.S. 738 (1967). We affirm. The brief thoroughly reviews: (1) Tyree's opportunity to present punishment evidence, (2) the validity of the community-supervision order, (3) the effective assistance of Tyree's trial counsel, and (4) the validity of the sentence. Counsel states: "After a thorough review of the record Appellant's appointed counsel on appeal is unable to find any error which he, in good faith, can urge as warranting a reversal of the judgment of conviction." Although counsel informed Tyree of the right to file a brief, Tyree did not file one. The State waived the filing of a response. We must, "after a full examination of all the proceedings, . . . decide whether the case is wholly frivolous." Anders at 744; accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex.Crim.App. 1991); Coronado v. State, 996 S.W.2d 283, 285 (Tex.App.-Waco 1999, order) (per curiam), disp. on merits, 25 S.W.3d 806 (Tex.App.-Waco 2000, pet. ref'd). 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 (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 at 511. We determine that the appeal is wholly frivolous. Accordingly, we affirm. Counsel must advise Tyree of our decision and of his right to file a petition for discretionary review. See Sowels v. State, 45 S.W.3d 690, 694 (Tex.App.-Waco 2001, no pet.).