SEAN JEFFREY FOSTER v. THE STATE OF TEXAS (2017)

MEMORANDUM OPINION

Sean Jeffrey Foster was convicted of one count of Burglary of a Habitation (Count I), three counts of Indecency with a Child by Contact (Counts II, III, and IV), and one count of Indecency with a Child by Exposure (Count V). See TEX. PENAL CODE ANN. §§ 30.02; 21.11(a)(1); 21.11(a)(2)(B) (West 2011). He was sentenced to 30 years in prison in Count I, 15 years in prison in each of Counts II-IV, and 10 years in prison in Count V. Count I was severed from appellate case number 10-16-00164-CR and assigned 10-17-00188-CR as its case number on appeal. See Foster v. State, Nos. 10-16-00164-CR & 10-17- 00188-CR (Tex. App.—Waco, June 14, 2017, order) (not designated for publication.). We address only Count I in this opinion.

Foster's appellate attorney filed a motion to withdraw and an Anders brief in support of the motion to withdraw in Count I, asserting that the appeal presents no issues of arguable merit. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Counsel advised Foster that counsel had filed the motion and brief pursuant to Anders and provided Foster a copy of the record, advised Foster of his right to review the record, and advised Foster of his right to submit a response on his own behalf. Foster submitted a response. The State did not reply.

Counsel asserts in the Anders brief that counsel has made a thorough review of the entire reporter's record and clerk's record, the sufficiency of the evidence to support the conviction, any potential trial error during every phase of the trial, the guilt/innocence phase jury charge, and the punishment phase of the trial, including the jury charge and the levels of punishment, and the trial court's judgment. After the review, counsel has concluded there is no non-frivolous issue to raise in this 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 his response to counsel's Anders brief, Foster contends he was invited to the house and did not commit a burglary but rather, was assaulted by the victim's father. The record does not support Foster's contentions.

Upon the filing of an Anders brief, as the reviewing appellate court, it is our duty to independently examine the record to decide whether counsel is correct in determining that an appeal is frivolous. See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Arguments are frivolous when they “cannot conceivably persuade the court.” McCoy v. Court of Appeals, 486 U.S. 429, 436, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988).

Having carefully reviewed the entire record, the Anders brief, and Foster's response, we have determined that the appeal is frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). Accordingly, we affirm the trial court's Judgment of Conviction by Jury (Count I) signed on April 15, 2016.

Should Foster 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. No substitute counsel will be appointed. 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 has been 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 Foster is granted, and counsel is discharged from representing Foster in this appeal. Notwithstanding counsel's discharge, counsel must send Foster 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.

Affirmed

[CR25]

TOM GRAY Chief Justice