James Patrick Fout v. State ( 2010 )

                                      COURT OF APPEALS

                                       SECOND DISTRICT OF TEXAS

                                                   FORT WORTH

                                        NO. 2-09-288-CR  

JAMES PATRICK FOUT                                                         APPELLANT

                                                   V.

THE STATE OF TEXAS                                                                STATE

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           FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                                MEMORANDUM OPINION^[1]

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After waiving a jury and entering an open plea of guilty, appellant James Patrick Fout appeals his conviction and fifteen-year sentence for aggravated robbery with a deadly weapon.^[2]  We affirm.

Appellant=s court-appointed appellate counsel has filed a motion to withdraw as counsel and a brief in support of that motion.  In the brief, counsel avers that, in his professional opinion, the appeal is frivolous. Counsel=s brief and motion meet the requirements of Anders v. California^[3] by presenting a professional evaluation of the record demonstrating why there are no arguable grounds for relief.  We gave Appellant the opportunity to file a pro se brief, and he has filed a motion to abate, which we have construed in the interests of justice as a supplemental response to counsel=s brief. The State has filed a letter brief arguing that Appellant=s response should be disregarded as it contains factual assertions that may not be considered on appeal.

Once an appellant=s court-appointed attorney files a motion to withdraw on the ground that the appeal is frivolous and fulfills the requirements of Anders, this court is obligated to undertake an independent examination of the record.^[4]  Only then may we grant counsel=s motion to withdraw.^[5]

We have carefully reviewed the record, counsel=s brief, Appellant=s supplemental response, and the State=s letter brief. We agree with counsel that this appeal is wholly frivolous and without merit; we find nothing in the record that might arguably support the appeal.^[6]  Accordingly, we grant counsel=s motion to withdraw and affirm the trial court=s judgment.

PER CURIAM

PANEL: LIVINGSTON, C.J.; WALKER and McCOY, JJ.

DO NOT PUBLISH       

Tex. R. App. P. 47.2(b)

DELIVERED: July 29, 2010                                                                                         

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^[1]See Tex. R. App. P. 47.4.

^[2]See Tex. Penal Code Ann. ' 29.03(a)(2) (Vernon 2003).

^[3]386 U.S. 738, 87 S. Ct. 1396 (1967).

^[4]See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State, 904 S.W.2d 920, 922B23 (Tex. App.CFort Worth 1995, no pet.).

^[5]See Penson v. Ohio, 488 U.S. 75, 82B83, 109 S. Ct. 346, 351 (1988).

^[6]See Bledsoe v. State, 178 S.W.3d 824, 827B28 (Tex. Crim. App. 2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006).