Arthur Lee Kimbel v. State

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-17-00782-CR

Arthur Lee KIMBEL, Appellant

v.

The STATE of Texas, Appellee

From the 216th Judicial District Court, Gillespie County, Texas Trial Court No. 6234 Honorable N. Keith Williams, Judge Presiding

Opinion by: Beth Watkins, Justice

Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice

Delivered and Filed: May 15, 2019

MOTION TO WITHDRAW GRANTED; AFFIRMED

Appellant Arthur Lee Kimbel was indicted for possession with intent to deliver a controlled

substance in an amount of four grams or more but less than two hundred grams. The indictment

included two enhancement allegations. A jury found Kimbel guilty, Kimbel pled true to the

enhancement allegations, and the trial court sentenced Kimbel to life imprisonment and assessed

a $10,000.00 fine. Kimbel perfected this appeal.

Kimbel’s court-appointed appellate attorney filed a motion to withdraw and a brief in

which he raises no arguable issues and concludes the appeal is without merit. The brief meets the 04-17-00782-CR

requirements of Anders v. California, 386 U.S. 738 (1967), High v. State, 573 S.W.2d 807 (Tex.

Crim. App. 1978), and In re N.F.M., No. 04-18-00475-CV, 2018 WL 6624409 (Tex. App.––San

Antonio Dec. 19, 2018, no pet.) (en banc). Counsel provided proof Kimbel was given: (1) a copy

of the brief, (2) a copy of the motion to withdraw, and (3) a motion to allow him to request the

appellate record. Counsel also informed Kimbel of his right to file his own brief. Kimbel filed a

brief on his own behalf in which he alleges the trial court erred in: (1) admitting into evidence

photographs of text messages from Kimbel’s cell phone regarding previous sales of

methamphetamine; and (2) denying his motion for mistrial, which was based on the assertion that

jurors saw Kimbel in a holding cell during the trial.

When an Anders brief and a subsequent pro se brief are filed, we must review the entire

record and: (1) determine the appeal is without merit and issue an opinion stating there is no

reversible error, or (2) determine there are arguable grounds for appeal and issue an opinion

remanding the cause to the trial court for appointment of new appellate counsel. Garner v. State,

300 S.W.3d 763, 766 (Tex. Crim. App. 2009) (citing Bledsoe v. State, 178 S.W.3d 824, 826–27

(Tex. Crim. App. 2005) (holding court of appeals may address merits of issues raised by pro se

only after any arguable grounds have been briefed by new appointed counsel)).

We have carefully reviewed the record, counsel’s brief, Kimbel’s brief, and the State’s

brief. We find no reversible error and agree with counsel the appeal is without merit. See id. We

therefore grant the motion to withdraw filed by Kimbel’s appointed counsel and affirm the trial

court’s judgment. See id.; Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.—San Antonio 1997, no

pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.).

No substitute counsel will be appointed. Should Kimbel wish to seek further review of this

case in the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for

discretionary review or file a pro se petition for discretionary review. Any petition for

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discretionary review must be filed within thirty days after either the day our judgment is rendered

or the day the last timely motion for rehearing or timely motion for en banc reconsideration is

overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be

filed with the clerk of the Texas Court of Criminal Appeals. See id. R. 68.3. Any petition for

discretionary review must comply with the requirements of Rule 68.4 of the Texas Rules of

Appellate Procedure. See id. R. 68.4.

Beth Watkins, Justice

Do Not Publish

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