Michael Dwayne Butler v. State ( 2011 )

NO. 12-10-00325-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
MICHAEL DWAYNE BUTLER, § APPEAL FROM THE THIRD
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Michael Butler appeals his conviction for felony driving while intoxicated (DWI).
Appellant’s counsel has filed a brief asserting 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). We dismiss the appeal.
BACKGROUND
On March 6, 2005, Appellant was arrested for felony DWI. Appellant was charged by
information after formally waiving indictment by a grand jury. In the information, the State alleged
that Appellant had two prior DWI convictions, one in 1999 and the other in 2002. Appellant and the
State entered into a negotiated plea agreement. As part of the agreement, he waived his right to a
jury trial, pleaded guilty, and was sentenced to ten years of imprisonment, probated for a ten year
community supervision period.
In July 2006, the State filed a motion to revoke Appellant’s community supervision for
several alleged violations. Instead of revoking his community supervision, in January 2007, the trial
court modified the terms to require, in part, that Appellant attend more intensive and more frequent
substance abuse treatment programs and serve sixty days in the county jail.
After his release from the county jail, Appellant was arrested for his fourth DWI in
Montgomery County, Texas, on September 8, 2007. He pleaded guilty and was sentenced by the
221st District Court in Montgomery County to three years of imprisonment on October 26, 2007. He
served approximately one year, was paroled, and then committed theft.
The State then filed its “First Amended Motion to Revoke Community Supervision” in 2009
and a second amended motion on March 30, 2010. In its second amended motion, the State asserted
that Appellant committed fourteen different violations of his community supervision conditions.
Appellant pleaded “true” to all the allegations.
At a hearing on August 16, 2010, based on Appellant’s plea of true, the trial court revoked
Appellant’s community supervision and sentenced him to ten years of imprisonment after a
punishment hearing. In both the Montgomery County judgment and the trial court’s judgment in the
instant case, the trial courts ordered that Appellant’s sentence run “concurrently.” Even though
neither judgment referred specifically to the other, the trial court in the instant case ordered that
Appellant receive full credit for the time he served in prison on the Montgomery County offense.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant’s counsel has filed a brief in compliance with Anders and Gainous. Counsel
states that he has diligently reviewed the appellate record and that he is well acquainted with the facts
of this case. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807 (Tex. Crim.
App. 1978), counsel=s brief presents a thorough chronological summary of the procedural history of
the case and further states that counsel is unable to present any arguable issues for appeal. 1 See
Anders, 386 U.S. at 745, 87 S. Ct. at 1400; see also Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346,
350, 102 L. Ed. 2d 300 (1988).
We have considered counsel’s brief and have conducted our own independent review of the
record. We found no reversible error. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim.
App. 2005).
CONCLUSION
As required, Appellant’s counsel has moved for leave to withdraw. See In re Schulman, 252
S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 511
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Counsel for Appellant certified that he provided Appellant with a copy of his brief and informed Appellant that
he had the right to file his own brief. Appellant was given time to file his own brief, but the time for filing such a brief has
expired and we have received no pro se brief.
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(Tex. Crim. App. 1991). We are in agreement with Appellant’s counsel that the appeal is wholly
frivolous. Accordingly, his motion for leave to withdraw is hereby granted, and we dismiss this
appeal. See In re Schulman, 252 S.W.3d at 408-09 (“After the completion of these four steps, the
court of appeals will either agree that the appeal is wholly frivolous, grant the attorney=s motion to
withdraw, and dismiss the appeal, or it will determine that there may be plausible grounds for
appeal.”).
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
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 he must file a pro se petition for discretionary review. See
In re Schulman, 252 S.W.3d at 408 n.22. Any petition for discretionary review must be filed within
thirty days from the date of either this opinion or the last timely motion for rehearing that was
overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be
filed with this court, after which it will be forwarded to the Texas Court of Criminal Appeals along
with the rest of the filings in this case. See TEX. R. APP. P. 68.3. 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; In re Schulman, 252 S.W.3d at 408 n.22.
Opinion delivered July 13, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
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