NO. 12-18-00290-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JAMES HENRY PORTER, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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APPEAL FROM THE 349TH 

JUDICIAL DISTRICT COURT

HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION

PER CURIAM

James Henry Porter appeals following the revocation of his deferred adjudication 

community supervision. Appellant’s counsel filed a brief in compliance with Anders v. 

California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State, 436 

S.W.2d 137 (Tex. Crim. App. 1969). Appellant filed a pro se response. We affirm.

BACKGROUND

Appellant was charged by indictment with tampering with evidence and pleaded “guilty.” 

Pursuant to a plea agreement, Appellant was placed on ten years deferred adjudication community 

supervision. Subsequently, the State filed a motion to adjudicate alleging that Appellant violated 

certain terms and conditions of his community supervision and seeking revocation of said 

community supervision. A hearing was conducted on the State’s motion, at which Appellant 

pleaded “true” to the State’s allegations. At the conclusion of the hearing, the trial court found 

that Appellant violated the terms and conditions of his community supervision as alleged in the 

State’s motion. However, the trial court, pursuant to a plea bargain, sentenced Appellant to five 

years imprisonment, probated for five years. 

Thereafter, the State filed a motion to revoke Appellant’s community supervision alleging 

Appellant violated certain terms and conditions thereof. A hearing was conducted on the State’s 
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motion, at which Appellant pleaded “not true” to all of the State’s allegations. In its motion, the 

State alleged Appellant committed four crimes while on community supervision. Included in those 

allegations, the State contended Appellant operated a motor vehicle while his license was 

suspended. The State further claimed that Appellant caused $200 in damage by hitting a mailbox 

while he was driving and failed to notify the owner of the mailbox. During the hearing, Appellant 

testified as follows:

Q. Okay. Did you -- there is an allegation that your vehicle struck a mailbox.

A. Yes, sir.

Q. Is there any truth to that allegation?

A. Yes, sir.

Q. Did you flee from the scene of that incident?

A. I was not aware that I had hit the mailbox. I had fainted. I passed out.

Q. From your medications?

A. Yes. I don’t know. I just -- I don’t know, I just blanked out. I passed out. And then the car lost 

control and it spun out, and we ended up in the ditch. And then Tenika was shaking me. She was 

shaking me, “James, James, what’s wrong with you?” And when I came to, the car was still 

running.

So then I just got on the gas and got back on the street and continued driving on. That’s exactly 

what -- how it happened.

Q. Did Tenika tell you you had hit a mailbox?

A. No, she didn’t tell me I had hit no mailbox.

Q. Did she black out too?

A. No, huh-huh. No, apparently not. I passed out.

Q. You had no idea about the mailbox?

A. No, sir, I didn’t.

Q. So you didn’t intentionally flee the incident?

A. No, sir. No, sir, I had --

Q. Okay.

A. -- I was still dazed from the -- I passed out. I blanked out. I fainted.

Q. Did you have a valid driver’s license at that time?

A. No, sir.

Q. Okay. So why wasn’t Tenika driving then if you didn't have a valid driver’s license?

A. Well, she don’t have a license either.

Q. I see.

A. And I telled her --

Q. Did you go to Brookshires then from there?

A. Yes, sir. We was going to the store. And, you know, I passed out. I blanked out. She wanted me 

to take her to the store. And, you know, and so -- and I took the chance. But I pass out. I’m telling 

the truth.

Q. Okay. And that class C misdemeanor offense --

A. Yes, sir, and I went to jail.

Q. -- mailbox -- did you go to jail for that?

A. Yes, sir. They gave me a class C misdemeanor and gave me time served. Next day I stayed, and 

gave me time served. And I walked out the next day.

Q. So you pled guilty to that?

A. Yes, sir. I pleaded guilty to that. It was an accident.
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At the conclusion of the hearing, the trial court found that Appellant committed two of the offenses 

alleged in the State’s motion, found that Appellant did not commit the other two offenses alleged, 

adjudicated him “guilty” of tampering with evidence, and sentenced him to five years 

imprisonment. This appeal followed.

ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA

Appellant’s counsel filed a brief in compliance with Anders v. California and Gainous v. 

State. Appellant’s counsel relates that he has reviewed the record and found no arguable grounds 

for appeal. In compliance with High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 

1978), Appellant’s brief contains a professional evaluation of the record demonstrating why there 

are no arguable grounds to be advanced.1

Appellant contends in his pro se response that he did not commit two of the offenses alleged 

in the State’s motion to revoke. He further argues that the court overlooked evidence that he was 

unaware his license was suspended during the incident at issue. 

When faced with an Anders brief and a pro se response by an appellant, an appellate court 

can either (1) determine that the appeal is wholly frivolous and issue an opinion explaining that it 

has reviewed the record and finds no reversible error or (2) determine that arguable grounds for 

appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief 

the issues. Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).

CONCLUSION

After conducting an independent examination of the record, we find no reversible error and 

conclude that the appeal is wholly frivolous. See id. Accordingly, we affirm the judgment of the 

trial court.

As required by Anders and Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991), 

Appellant’s counsel moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407 

(Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the merits 

and now grant counsel’s motion for leave to withdraw.

 1 In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief, notified 

Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took 

concrete measures to facilitate Appellant’s review of the appellate record. See Kelly v. State, 436 S.W.3d 313, 319 

(Tex. Crim. App. 2014). Appellant was given time to file his own brief. 
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Appellant’s counsel has a duty to, within five days of the date of this opinion, send a copy 

of the opinion and judgment to Appellant and advise him of his right to file a petition for 

discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. Should 

Appellant wish to seek review of these cases by the Texas Court of Criminal Appeals, he must 

either retain an attorney to file a petition for discretionary review on his behalf or he 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 date that the last timely motion for rehearing 

was overruled by this Court. See TEX. R. APP. P. 68.2(a). Any petition for discretionary review 

must be filed with the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition 

for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of 

Appellate Procedure. See In re Schulman, 252 S.W.3d at 408 n.22.

Opinion delivered September 11, 2019.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

SEPTEMBER 11, 2019

NO. 12-18-00290-CR

JAMES HENRY PORTER,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 349th District Court 

of Houston County, Texas (Tr.Ct.No. 15CR-065)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed, and that this decision be certified to the court below 

for observance.

By per curiam opinion.

Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.