JIMMIE FRANK DITTO APPELLANT v. THE STATE OF TEXAS STATE FROM CRIMINAL DISTRICT COURT NO OF TARRANT COUNTY PSI (2010)

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

MEMORANDUM OPINION1

At the continued hearing, the trial court took judicial notice of the clerk's record and the PSI, which the trial court reviewed before the hearing.   After hearing argument

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 her professional opinion, this appeal is frivolous.   Counsel's brief and motion meet the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds for relief.   See Stafford v. State, 813 S.W.2d 503, 510-11 & n.3 (Tex.Crim.App.1991).   This court afforded appellant the opportunity to file a brief on his own behalf, but he did not.

Once an appellant's court-appointed counsel files a motion to withdraw on the ground that the appeal is frivolous and fulfills the requirements of Anders, we are obligated to undertake an independent examination of the record to see if there is any arguable ground that may be raised on his behalf.   See id. at 511.   Only then may we grant counsel's motion to withdraw.   See Penson v. Ohio, 488 U.S. 75, 82-83, 109 S.Ct. 346, 351 (1988).

We have carefully reviewed the record and counsel's brief.   We agree with counsel that the appeal is wholly frivolous and without merit.   We find nothing in the record that might arguably support the appeal.   See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex.Crim.App.2005).   Consequently, we grant the motion to withdraw and affirm the trial court's judgment.

PANEL:  LIVINGSTON, C.J.;   DAUPHINOT and GABRIEL, JJ.

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

DELIVERED:  December 30, 2010

FOOTNOTES

FN1. See Tex.R.App. P. 47.4..  FN1. See Tex.R.App. P. 47.4.

FN2. Appellant's counsel was able to elicit evidence that appellant had suffered a stroke about ten years before being placed on deferred adjudication community supervision and that, at times, he seemed confused..  FN2. Appellant's counsel was able to elicit evidence that appellant had suffered a stroke about ten years before being placed on deferred adjudication community supervision and that, at times, he seemed confused.