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Fagan v. State

COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS
Aug 23, 2017
NO. 12-16-00219-CR (Tex. App. Aug. 23, 2017)

Opinion

NO. 12-16-00219-CR

08-23-2017

DARIUS DUANE FAGAN, APPELLANT v. THE STATE OF TEXAS, APPELLEE


APPEAL FROM THE CRIMINAL DISTRICT COURT 2 TARRANT COUNTY , TEXAS MEMORANDUM OPINION

Darius Duane Fagan appeals his conviction for evading arrest or detention with a vehicle. Appellant's counsel filed a brief in compliance with Anders v. California , 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and Gainous v. State , 436 S.W.2d 137 (Tex. Crim. App. 1969). Appellant filed a pro se response. We affirm.

BACKGROUND

Appellant was charged by felony information with evading arrest or detention with a vehicle while using the vehicle as a deadly weapon. Pursuant to a plea bargain agreement with the State, Appellant pleaded "guilty" to the offense, and the trial court deferred a finding of guilt, placed Appellant on community supervision for a term of four years, and assessed a fine of $800.

Subsequently, the State filed a petition to proceed to adjudication. Appellant pleaded "true" to the allegation in the petition. After giving both parties an opportunity to present evidence and arguments, the trial court found the allegation true and assessed Appellant's punishment at imprisonment for five years. This appeal followed.

ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA

Appellant's counsel filed a brief in compliance with Anders v. California and Gainous v. State. Appellant's counsel relates that he has diligently reviewed the record and found no reversible error. In compliance with High v. State , 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978), Appellant's brief contains a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced.

In compliance with Kelly v. State , Appellant's counsel provided Appellant with a copy of the brief, notified Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took concrete measures to facilitate Appellant's review of the appellate record. 436 S.W.3d 313, 319 (Tex. Crim. App. 2014).

Appellant contends in his pro se response that (1) he did not commit the offense, (2) he was unaware of his community supervision officer's location, (3) he was misled by defense counsel regarding the punishment range upon revocation, (4) defense counsel did not give him an opportunity to testify in the punishment phase, and (5) defense counsel was ineffective.

When faced with an Anders brief and a pro se response by an appellant, an appellate court can either (1) determine that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error or (2) determine that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues. Bledsoe v. State , 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).

CONCLUSION

After conducting an independent examination of the record, we find no reversible error and conclude that the appeal is wholly frivolous. See id . Accordingly, we affirm the judgment of the trial court.

As required by Anders and Stafford v. State , 813 S.W.2d 503, 511 (Tex. Crim. App. 1991), Appellant's counsel has moved for leave to withdraw. See also In re Schulman , 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the merits and now grant counsel's motion for leave to withdraw.

Appellant's counsel has a duty to, within five days of the date of this opinion, send a copy of the opinion and judgment to Appellant and advise him of his right to file a petition for discretionary review. See TEX. R. APP. P. 48.4; In re Schulman , 252 S.W.3d at 411 n.35. Should Appellant wish to seek review of these cases by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review on his behalf or he 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 court's judgment or the date the last timely motion for rehearing was overruled by this court. See TEX. R. APP. P. 68.2(a). Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See In re Schulman , 252 S.W.3d at 408 n.22. Opinion delivered August 23, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

Appeal from the Criminal District Court 2 of Tarrant County, Texas (Tr.Ct.No. 1345905W)

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.

By per curiam opinion.

Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.


Summaries of

Fagan v. State

COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS
Aug 23, 2017
NO. 12-16-00219-CR (Tex. App. Aug. 23, 2017)
Case details for

Fagan v. State

Case Details

Full title:DARIUS DUANE FAGAN, APPELLANT v. THE STATE OF TEXAS, APPELLEE

Court:COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

Date published: Aug 23, 2017

Citations

NO. 12-16-00219-CR (Tex. App. Aug. 23, 2017)