IN THE
TENTH COURT OF APPEALS
No. 10-08-00206-CR
BILLY DON SWINNEY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 413th District Court
Johnson County, Texas
Trial Court No. F40911
MEMORANDUM OPINION
Billy Don Swinney pled guilty to assault (family violence with a prior
conviction), a third-degree felony, and was sentenced to ten years in prison. The trial
court suspended the sentence and placed Swinney on community supervision for ten
years. The State moved to revoke community supervision, alleging in part that
Swinney subsequently committed the offense of “forgery by possession of a check with
intent to pass” and was convicted and incarcerated for that offense. Swinney pled true
to that allegation, and the trial court revoked Swinney’s community supervision and
sentenced him to six years in prison.
Swinney filed a pro se notice of appeal but then appellate counsel was appointed
for him. His appointed counsel filed an Anders brief asserting that he has diligently
reviewed the appellate record and that, in his opinion, the appeal is frivolous. See
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although
informed of his right to do so, Swinney did not file a pro se brief or response. The State
did not file a brief. We will affirm.
In an Anders case, we must, “after a full examination of all the proceedings, []
decide whether the case is wholly frivolous.” Anders, 386 U.S. at 744, 87 S.Ct. at 1400;
accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is
“wholly frivolous” or “without merit” when it “lacks any basis in law or fact.” McCoy
v. Court of Appeals, 486 U.S. 429, 439 n.10, 108 S.Ct. 1895, 1902 n.10, 100 L.Ed.2d 440
(1988).
We have conducted an independent review of the record, and because we find
this appeal to be wholly frivolous, we affirm the judgment. Counsel must send
Swinney a copy of our decision by certified mail, return receipt requested, at Swinney’s
last known address. TEX. R. APP. P. 48.4. Counsel must also notify Swinney of his right
to file a pro se petition for discretionary review. Id.; see also Ex parte Owens, 206 S.W.3d
670, 673-74 (Tex. Crim. App. 2006). We grant counsel’s motion to withdraw, effective
upon counsel’s compliance with the aforementioned notification requirement as
evidenced by “a letter [to this Court] certifying his compliance.” See TEX. R. APP. P. 48.4.
Swinney v. State Page 2
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed March 31, 2010
Do not publish
[CR25]
Swinney v. State Page 3
Billy Don Swinney v. State
Combined Opinion