Stanley Yarborough v. The State of Texas Appeal from 12th District Court of Walker County (memorandum opinion by chief justice gray)

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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. Yarborough v. State Page 2 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, Yarborough v. State Page 3 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] Yarborough v. State Page 4

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