John Delford Fisher v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00012-CR
John Delford FISHER,
Appellant
v.
STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-0907
Honorable Mary Roman, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: October 20, 2004

MOTION TO WITHDRAW GRANTED; AFFIRMED

Appellant John Delford Fisher pled guilty to theft and was sentenced in accordance with a plea bargain. The sentence was suspended, and Fisher was placed on community supervision (regular probation) for five years. Fisher subsequently pled true to violating the conditions of his probation. The trial court revoked his probation and sentenced him to serve the five-year sentence less credit for time served. Fisher's court-appointed attorney on appeal filed a brief in which counsel concludes this appeal is frivolous and without merit. Counsel also filed a motion to withdraw.

Counsel's brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Specifically, counsel states Fisher was provided with a copy of the brief and the motion to withdraw, and was further informed of his right to review the record (1) and file his own brief if he wished. Fisher filed a letter which this court interprets as his pro se brief.

Fisher admits there is no dispute that he violated the conditions of his probation. However, he sought leniency from the trial court because he says the violation resulted from a mix-up in the instructions about what he had to do. Even if this court might have decided differently, the trial court has broad discretion to modify, continue, or revoke probation when the evidence shows the defendant has violated the conditions of probation. Flournoy v. State, 589 S.W.2d 705, 708-09 (Tex. Crim. App. 1979).

We reviewed the record, counsel's brief, and Fisher's brief, and agree the appeal is frivolous and without merit. The judgment of the trial court is affirmed. Furthermore, we

grant the motion to withdraw filed by Fisher's counsel. See Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.-San Antonio 1996, no pet.).

Paul W. Green, Justice

Do Not Publish

1. 1 Counsel also thoughtfully provided Fisher with a copy of the record. See Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.--San Antonio 1996, no pet.).