Dell Everette Burkeen II v. State

• Court: Court of Appeals of Texas
• Decided: November 27, 2019
• Docket: 02-19-00004-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-19-00004-CR ___________________________

DELL EVERETTE BURKEEN II, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 355th District Court Hood County, Texas Trial Court No. CR13787

Before Bassel, Womack, and Wallach, JJ. Per Curiam Memorandum Opinion MEMORANDUM OPINION

A jury found Appellant Dell Everett Burkeen II guilty of possession of 4 grams

or more but less than 200 grams of methamphetamine with intent to deliver. See Tex.

Health & Safety Code Ann. § 481.112(a), (d). In accordance with the jury’s

assessment, the trial court sentenced Burkeen to twenty-five years’ confinement and

ordered him to pay a $2,500 fine.

Burkeen’s court-appointed appellate counsel has filed a motion to withdraw as

counsel and a brief in support of that motion. Counsel’s brief and motion meet the

requirements of Anders v. California by presenting a professional evaluation of the

record demonstrating why there are no arguable grounds for relief. See 386 U.S. 738,

744, 87 S. Ct. 1396, 1400 (1967). In compliance with Kelly v. State, counsel notified

Burkeen of the motion to withdraw, provided him a copy of the brief, informed him

of his right to file a pro se response, informed him of his pro se right to seek

discretionary review should this court hold that the appeal is frivolous, and took

concrete measures to facilitate Burkeen’s review of the appellate record. 436 S.W.3d

313, 319 (Tex. Crim. App. 2014). Burkeen had the opportunity to file a pro se

response to the Anders brief but has not done so.

As the reviewing court, we must conduct an independent evaluation of the

record to determine whether counsel is correct in determining that the appeal is

frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v.

State, 904 S.W.2d 920, 923 (Tex. App.—Fort Worth 1995, no pet.). Only then may we

2 grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct.

346, 351 (1988).

We have carefully reviewed the record and counsel’s brief. We agree with

counsel that this appeal is wholly frivolous and without merit; we find nothing in the

record that arguably might support an appeal. See Bledsoe v. State, 178 S.W.3d 824,

827–28 (Tex. Crim. App. 2005). Accordingly, we grant counsel’s motion to withdraw

and affirm the trial court’s judgment.

Per Curiam

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: November 27, 2019