Marcus Cain v. The State of Texas--Appeal from 52nd District Court of Coryell County
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IN THE TENTH COURT OF APPEALS No. 10-10-00412-CR MARCUS CAIN, Appellant v. THE STATE OF TEXAS, Appellee From the 52nd District Court Coryell County, Texas Trial Court No. FAM-07-18831 MEMORANDUM OPINION Marcus LaSean Cain pled guilty to the offense of Aggravated Assault with a Deadly Weapon and was placed on deferred adjudication community supervision for 10 years. See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). The State filed a motion to adjudicate guilt and revoke Cain s community supervision. Cain pled true to two counts of the State s motion and not true to two counts of the motion. After a hearing, the trial court adjudicated Cain guilty and sentenced him to ten years in prison. Cain appeals, and we affirm. Cain 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). Cain was informed of his right to submit a brief on his own behalf, but he did not file a brief. Counsel's brief reviews (1) the sufficiency of the indictment, (2) whether there were any adverse rulings before, during, or after the trial on objections or motions, (3) the sufficiency of the evidence, (4) the imposition of the sentence, and (5) whether there were any other errors rising to the level of plain error. After these reviews, counsel concludes that he can find nothing in the record which might arguably support an appeal. 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. 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. Cain v. State Page 2 After a review of 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 Cain 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 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. See also In re Schulman, 252 S.W.3d at 409 n.22. Counsel's request that he be allowed to withdraw from representation of Cain is granted. Additionally, counsel must send Cain 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 Cain v. State Page 3 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed August 3, 2011 Do not publish [CR25] Cain v. State Page 4
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