Stanley Yarborough v. State ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00316-CR
STANLEY YARBOROUGH,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 12th District Court
Walker County, Texas
Trial Court No. 23,744
MEMORANDUM OPINION
Stanley Yarborough was charged with indecency with a child. He pled guilty.
The trial court deferred an adjudication of guilt and placed Yarborough on community
supervision for 10 years. Seven years later, the trial court revoked Yarborough’s
community supervision, adjudicated Yarborough’s guilt, and sentenced Yarborough to
three years in prison.
Yarborough’s appellate attorney filed an Anders brief in this appeal. See Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Yarborough was informed
of his right of access to the appellate record and his right to submit a brief or other
response on his own behalf. He did not request access to the appellate record and did
not submit a brief or response.
Counsel asserts in the Anders brief that counsel reviewed the reporter’s record
and clerk’s record, the sentence received by Yarborough, and the sufficiency of the
evidence to support revocation of Yarborough’s deferred adjudication community
supervision. As part of his brief, counsel reviews the testimony supporting the grounds
for revocation. He notes there were multiple grounds asserted and that only one
ground was necessary to affirm the revocation. Counsel concludes that counsel is
unable to find any non-frivolous error.
Counsel's brief evidences a professional evaluation of the record for error, and
we conclude that counsel performed the duties required of appointed counsel. See
Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also
In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008).
In reviewing an Anders appeal, we must, "after a full examination of all the
proceedings, ... decide whether the case is wholly frivolous." See Anders, 386 U.S. at 744;
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.
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Court of Appeals, 486 U.S. 429, 439 n.10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (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, 813
S.W.2d at 511.
After reviewing counsel's brief and the entire record in this appeal, we determine
the appeal to be wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim.
App. 2005). Accordingly, we affirm the trial court's judgment.
Should Yarborough wish to seek further review of this case by the Texas Court of
Criminal Appeals, he must either retain an attorney to file a petition for discretionary
review or 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 opinion or
the last timely motion for rehearing or timely motion for en banc reconsideration was
overruled by this Court. See TEX. R. APP. P. 68.2. Any petition and all copies of the
petition for discretionary review must be filed with the Clerk of the Court of Criminal
Appeals. See TEX. R. APP. P. 68.3. (Tex. Crim. App. 1997, amended eff. Sept. 1, 2011).
Any petition for discretionary review should comply with the requirements of Rule 68.4
of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4. See also In re
Schulman, 252 S.W.3d at 409 n.22.
Counsel's motion to withdraw from representation of Yarborough is granted,
and counsel is permitted to withdraw from representing Yarborough. Additionally,
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counsel must send Yarborough a copy of our decision, notify him of his right to file a
pro se petition for discretionary review, and send this Court a letter certifying counsel's
compliance with Texas Rule of Appellate Procedure 48.4. TEX. R. APP. P. 48.4; see also In
re Schulman, 252 S.W.3d at 409 n.22.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed December 3, 2015
Do not publish
[CR25]
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