## In The Court of Appeals Seventh District of Texas at Amarillo

No. 07
- 16
- 00048
- CR
ROBERT DUNCAN, APPEL LANT

V. THE STATE OF TEXAS, APPELLEE On Appeal from the 222nd District Court Deaf Smith County, Texas Trial Court No. CR2013D040, Honorable Roland D. Saul, Presiding



### June 6 , 2016 MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Appellant Robert Duncan appeals his conviction and sentence for aggravated assault with a deadly weapon 1 following the revocation of his deferred adjudic ation community supervision. His court
- appointed appellate counsel has filed a motion to

1 T EX
. P ENAL C ODE A NN
. § 22.02 (Tex. 2015).2

withdraw supported by an Anders 2 brief. We will grant counsel's motion to withdraw and affirm the judgment. Background

After a ppellant plead guilty to the indicted offense of aggravated assault with a deadly weapon i n June 2013, the trial court deferred a finding of guilt and placed appe llant on deferred adjudication community supervision for a term of six years. It also assessed a fine of $1,5 00.
The State filed a motion to proceed with adjudication of guilt in July 2015 and filed an amended motion in January 2016

. It alleged appellant f ailed to comply with

seven conditions of his community supervision order. The alleged violations included commission of the offenses of retaliation, assault and possession of marijuana

.
At the January 2016 hearing o n the State's motion , appellant entered a n open plea of “ true ” to four of the alleged violations of community supervision. The State presented the testimony of two witnesses to prove appellant committed criminal offenses during the period of his community supervision. Appellant’s community supe rv ision officer also testified, telling the court appellant ple a d guilty to possession of marijuana in July 2015. The officer also testified he believed that, based on appellant’s behavior while on community supervision and his history of committing assaults , appellant’s community supervision should be revoked. Appellant testified, asking the

2 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); see In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) (orig. proceeding) (“[T]he sole purpose of an Anders brief is to explain and support the motion to withdraw ” ).3

court to allow him a chance to successfully complete his community supervision. Appellant admitted to several violations of his community supervision and also admitted p rior offenses in other states. He also told the trial court he had paid his delinquent fees, had been sober for six months, had a place to live with his wife and had a job waiting for him. At the conclusion of the hearing, the trial court found appellant violated his community supervision order and adjudicated him guilty of aggravated assault with a deadly weapon. Punishment was assessed at confinement in prison for twelve years. Analysis Appellant’ s counsel on appeal expresses his opinion in the Anders brief that nothing in th e record establishes reversible error and the appeal is frivolous. The brief discusses the case background, the grounds alleged for revocation, and the evidence presented at the hearing. Counsel discusses grounds of potential error but concludes the trial court did not abuse its discretion by revoking appellant's community supervision and imposing a sentence within the permissible range. Counsel has demonstrated that he has provided to appellant a copy of the brief, the mo tion to wi thdraw, and the clerk’s and reporter’ s records, and has notified him of his right to file a pro se response to the brief. Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d at 408. He also notified appellant of his right to file a petition for discretionary review if we affirm the trial court’s judgment. In re Schulman, 252 S.W.3d at 408. By letter, this cour t also notified appellant of his opportunity to submit a response to the4

Anders brief and motion to withdraw filed by h is counsel. Appellant did not file a response. In conformity with the standards set out by the United States Supreme Court, we do not rule on the motion to withdraw until we have independently examined the record. Nichols v. State , 954 S.W.2d 83, 86 (Tex. App.

— San Antonio 1997, no pet.). If we determine the appeal arguably has merit, we remand it to the trial court for appointment of new counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).
Accordingly, w e have reviewed the entire record to determine whether there are any arguable grounds which might support an appeal. See Penson v. Ohio , 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005). We have f ound no such arguable grounds supporting a claim of reversible error, and agree with counsel that the appeal is frivolous.
Conclusion

The motion of coun sel to withdraw is granted 3 and the judgment of the trial court is affirmed. T EX
. R. A PP
. P. 43.2(b). James T. Campbell Justice
Do not publish.

3 Counsel shall, within five da ys after the opinion is handed down, send his client a copy of the opinion and judgment, along with notification of the defendant's right to file a pro se petition for discretionary review. T EX
. R. A PP
. P. 48.4.