Steven Eugene Foust v. State

NUMBER 13-13-00376-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
STEVEN EUGENE FOUST, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 15th District Court
of Grayson County, Texas.
ORDER
Before Chief Justice Valdez and Justices Perkes and Longoria
Order Per Curiam1
Appellant, Steven Eugene Foust, was charged by indictment with burglary of a
habitation (Count I) and assault with a deadly weapon (Count II). The case was tried to
1This case is before this Court on transfer from the Fifth Court of Appeals in Dallas pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through 3d C.S. 2013).
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a jury, which returned a verdict of guilty on both counts and found that appellant used or
exhibited a deadly weapon during the course of the burglary. On both counts, the jury
assessed punishment at five years’ imprisonment and no fine. Appellate counsel filed
an Anders brief concluding that the appeal is frivolous and without merit. See Anders v.
California, 386 U.S. 738, 744 (1967). On May 15, 2014, we issued an order striking the
brief for a defect of form and directing counsel to file an amended brief addressing the
defect. See Wilson v. State, 40 S.W.3d 192, 199 (Tex. App.—Texarkana 2001, no pet.)
(“Deficiencies of form include technical violations of the Anders requirements . . . but also
include the failure to discuss issues appearing prominently in the record.”). Appellant’s
counsel has sent this Court a second amended brief that addresses the defect in form
and that contains the standard prayer for relief in Anders cases, but omits what counsel
included in his first brief: citations to the Anders rule and counsel’s conclusion under
Anders that the appeal is frivolous, counsel’s professional review of the full record (not
just the issue we identified in our prior order) that Anders requires, and a certificate of
service indicating that the counsel served the brief on both the State and appellant. 2
Accordingly, counsel’s motion for leave to file his second amended brief is
DENIED. We order counsel to file a third amended brief within fourteen days of the date
of this order that fully complies with the Texas Rules of Appellate Procedure and the
requirements of Anders.3 Motions for extension of time will not be favorably entertained
2 We note that counsel provided appellant with a copy of the record with counsel’s first brief and
appellant filed a pro se response. Counsel has therefore already complied with the new Anders
requirement that the Texas Court of Criminal Appeals announced in Kelly v. State, PD-0702-13, 2014 WL
2865901, at **3–4 (Tex. Crim. App. June 25, 2014).
3 This includes, but is not limited to: citation to the rule of Anders v. California, 386 U.S. 738, 744
(1967) and counsel’s conclusion under Anders that the appeal is frivolous, counsel’s professional review of
the full record; the additional issue that counsel addressed in his second brief; a certificate of service stating
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absent extraordinary circumstances.
IT IS SO ORDERED
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
9th day of July, 2014.
that counsel has served the new brief on both the State and appellant; and a certificate of compliance.
See TEX. R. APP. P. 38.1, 9.4(i)(3).
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