NO. 12-10-00325-CR

 

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MICHAEL DWAYNE BUTLER, § APPEAL FROM THE THIRD

APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,

APPELLEE § ANDERSON COUNTY, TEXAS

 

MEMORANDUM OPINION

PER CURIAM

Michael Butler appeals his conviction for felony driving while intoxicated (DWI). 

Appellant’s counsel has filed a brief asserting 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). We dismiss the appeal. 

BACKGROUND

On March 6, 2005, Appellant was arrested for felony DWI. Appellant was charged by 

information after formally waiving indictment by a grand jury. In the information, the State alleged 

that Appellant had two prior DWI convictions, one in 1999 and the other in 2002. Appellant and the 

State entered into a negotiated plea agreement. As part of the agreement, he waived his right to a 

jury trial, pleaded guilty, and was sentenced to ten years of imprisonment, probated for a ten year 

community supervision period. 

In July 2006, the State filed a motion to revoke Appellant’s community supervision for 

several alleged violations. Instead of revoking his community supervision, in January 2007, the trial 

court modified the terms to require, in part, that Appellant attend more intensive and more frequent 

substance abuse treatment programs and serve sixty days in the county jail. 
2

After his release from the county jail, Appellant was arrested for his fourth DWI in 

Montgomery County, Texas, on September 8, 2007. He pleaded guilty and was sentenced by the 

221st District Court in Montgomery County to three years of imprisonment on October 26, 2007. He 

served approximately one year, was paroled, and then committed theft.

The State then filed its “First Amended Motion to Revoke Community Supervision” in 2009 

and a second amended motion on March 30, 2010. In its second amended motion, the State asserted 

that Appellant committed fourteen different violations of his community supervision conditions. 

Appellant pleaded “true” to all the allegations. 

At a hearing on August 16, 2010, based on Appellant’s plea of true, the trial court revoked 

Appellant’s community supervision and sentenced him to ten years of imprisonment after a 

punishment hearing. In both the Montgomery County judgment and the trial court’s judgment in the 

instant case, the trial courts ordered that Appellant’s sentence run “concurrently.” Even though 

neither judgment referred specifically to the other, the trial court in the instant case ordered that 

Appellant receive full credit for the time he served in prison on the Montgomery County offense. 

ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA

Appellant’s counsel has filed a brief in compliance with Anders and Gainous. Counsel 

states that he has diligently reviewed the appellate record and that he is well acquainted with the facts 

of this case. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807 (Tex. Crim. 

App. 1978), counsel=s brief presents a thorough chronological summary of the procedural history of 

the case and further states that counsel is unable to present any arguable issues for appeal.1 See 

Anders, 386 U.S. at 745, 87 S. Ct. at 1400; see also Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 

350, 102 L. Ed. 2d 300 (1988). 

We have considered counsel’s brief and have conducted our own independent review of the 

record. We found no reversible error. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. 

App. 2005).

CONCLUSION

As required, Appellant’s counsel has moved for leave to withdraw. See In re Schulman, 252 

S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 511 

 

1 Counsel for Appellant certified that he provided Appellant with a copy of his brief and informed Appellant that 

he had the right to file his own brief. Appellant was given time to file his own brief, but the time for filing such a brief has 

expired and we have received no pro se brief.
3

(Tex. Crim. App. 1991). We are in agreement with Appellant’s counsel that the appeal is wholly 

frivolous. Accordingly, his motion for leave to withdraw is hereby granted, and we dismiss this 

appeal. See In re Schulman, 252 S.W.3d at 408-09 (“After the completion of these four steps, the 

court of appeals will either agree that the appeal is wholly frivolous, grant the attorney=s motion to 

withdraw, and dismiss the appeal, or it will determine that there may be plausible grounds for 

appeal.”).

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 

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 he must file a pro se petition for discretionary review. See 

In re Schulman, 252 S.W.3d at 408 n.22. 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; In re Schulman, 252 S.W.3d at 408 n.22.

Opinion delivered July 13, 2011.

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

(DO NOT PUBLISH)