Opinion
Gary J. Cohen, Austin, for appellant.
Robert O. Smith, Dist. Atty., Richard E. Banks, Asst. Dist. Atty., Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.
OPINION
BROWN, Commissioner.
This is an appeal from an order revoking probation. Appellant was convicted of the primary offense of attempted burglary; the punishment, imprisonment for three (3) years.
Appellant's court-appointed counsel has filed a brief in which he has concluded that the appeal is wholly frivolous and without merit. Counsel certified in the brief that he had delivered a copy of same to the appellant. Because there was nothing before us to show that appellant had been advised that he would be given an opportunity to examine the appellate record and that he had a right to file a pro se brief, we abated the appeal on January 12, 1977, in an unpublished per curiam opinion.
We now have before us a supplemental transcript which contains the affidavit of court-appointed counsel. In the affidavit counsel states that appellant has been paroled from the Department of Corrections and is currently living in Buda, Texas. He further states that appellant has no telephone and that he has mailed three separate letters to appellant by certified mail, return receipt requested, in which he requested appellant to contact him. He further states that appellant has answered none of the letters. Copies of these letters are attached to counsel's affidavit; the last, which was received at appellant's home on November 30, 1976, advised appellant that he would be given an opportunity to review the appellate record and that he had a right to file a pro se brief.
On January 24, 1977, the clerk of the trial court mailed a letter to appellant's address in Buda, advising appellant that he would be given an opportunity to review the appellate record and that he had a right to file a pro se brief. This letter was sent by certified mail and the returned receipt shows that it was delivered to appellant's address on January 25, 1977. Consequently, we conclude that there has been a showing of sufficient diligence to locate appellant in order to advise him of his appellate rights. We, therefore, order the appeal reinstated and will consider the same on the merits.
An examination of the record reveals that appellant entered a plea of "true" to the State's motion to revoke probation and judicially confessed that he violated the same. Consequently, we agree with counsel's conclusion that the appeal is wholly frivolous and without merit, and we further find nothing in the record which might arguably support the appeal.
The judgment is affirmed.
Opinion approved by the Court.