Mark Anthony Sawyer v. State of Texas ( 2001 )

NO. 07-01-0060-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
OCTOBER 15, 2001
______________________________
MARK ANTHONY SAWYER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 35,991-D; HONORABLE DON EMERSON, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
In this proceeding, appellant Mark Anthony Sawyer seeks to appeal an adjudication
of guilt for the offense of aggravated assault after the trial court found he violated the terms
of his community supervision. Finding no merit to this appeal, we affirm.
Appellant’s original plea of guilty was made on May 3, 1996. The court deferred
adjudication of appellant’s guilt conditioned on four years community supervision under
conditions set out by the court. The State filed motions to adjudicate appellant’s guilt on
September 24, 1996, November 26, 1997, November 16, 1998, and October 11, 2000. On
each occasion, appellant plead true to one or more of the State’s allegations. After the
first three hearings, the trial court continued appellant’s community supervision, modifying
the applicable conditions.
At the January 19, 2001 hearing on the State’s fourth motion, the trial court granted
the motion, adjudicated appellant guilty and sentenced him to five years confinement in
the Institutional Division of the Texas Department of Criminal Justice. Appellant’s retained
counsel filed a notice of appeal on January 31, 2001.
On June 4, 2001, appellant’s counsel filed a brief in which he has certified that, in
compliance with Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493
(1967), and Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969), he has diligently
reviewed the record and determined that, in his opinion, the record reflects no reversible
error or grounds upon which an appeal can be predicated. Thus, he concludes, the appeal
is without merit and is frivolous. In compliance with High v. State, 573 S.W.2d 807, 813
(Tex.Crim.App. 1978), counsel has analyzed the record, made references to the record,
and candidly discussed why, under the controlling authorities, there is no error in the
court's judgment.
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Counsel has certified that he has served a copy of the brief on appellant and
informed him that, in counsel's view, the appeal is without merit. He has also attached a
copy of a letter by which he notified appellant of his right to review the record and to file
a pro se brief if he wishes to do so. See Johnson v. State, 885 S.W.2d 641, 646
(Tex.App.--Waco 1994, writ ref’d). Appellant has not filed a pro se brief, but on June 25
wrote to this court expressing an interest in withdrawing his appeal and having counsel
appointed if necessary. By letter dated June 29 from the court clerk, we informed
appellant of his right to file a motion to dismiss the appeal, and that if he chose not to
dismiss the appeal, we would conduct an independent examination of the record for
arguable points of error and remand for appointment of counsel if necessary. Id. at 647.
On August 14, 2001, appellant again wrote to the court expressing a desire to dismiss his
appeal, but no motion to dismiss was tendered for filing.
We initially note that the record indicates appellant’s counsel was retained. When
retained counsel concludes that an appeal lacks merit, they are obligated to inform the
client of this conclusion and refuse to prosecute the appeal. Id. at 645. However, the
decision to withdraw from retained representation does not invoke federal constitutional
concerns. The procedural safeguards outlined in the Anders cases apply only to an
appointed attorney representing an indigent defendant on a first appeal by right. Id.
Nevertheless, we have also made our own careful examination of the record to determine
if there are arguable grounds which might support the appeal. See Stafford v. State, 813
S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such grounds and agree with
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counsel that the appeal is without merit and is, therefore, frivolous. Johnson, 885 S.W.2d
at 647. Accordingly, the judgment of the trial court is affirmed. We also grant counsel’s
motion to withdraw.
John T. Boyd
Chief Justice
Do not publish.
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