Kenneth Dale Childers, Jr. v. State

Opinion

Opinion issued May 23, 2013

In The Court of Appeals For The First District of Texas

NO. 01-12-00462-CR ____________

KENNETH DALE CHILDERS, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 411th District Court Polk County, Texas Trial Court Cause No. 18938

MEMORANDUM OPINION

Appellant, Kenneth Dale Childers, Jr., pleaded guilty to the felony offense of

sexual assault of a child, with an agreed recommendation from the State that

adjudication be deferred and appellant placed on community supervision for 5

years. The trial court followed the recommendation, deferred adjudication, and placed appellant on community supervision for 5 years. Subsequently, the State

moved to adjudicate. Appellant pleaded “not true” to all of the State’s allegations.

After a hearing on the motion, the trial court found the allegations true, found

appellant guilty, and assessed punishment at 10 years’ confinement. The trial court

certified that appellant has the right to appeal. Appellant timely filed a notice of

appeal.

Appellant’s appointed counsel on appeal has filed a motion to withdraw,

along with an Anders brief stating that the record presents no reversible error and

therefore the appeal is without merit and is frivolous. See Anders v. California, 386

U.S. 738, 87 S. Ct. 1396 (1967).

Counsel’s brief meets the Anders requirements by presenting a professional

evaluation of the record and supplying us with references to the record and legal

authority. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State,

573 S.W.2d 807, 812–13 (Tex. Crim. App. 1978). Counsel indicates that she has

thoroughly reviewed the record and that she is unable to advance any grounds of

error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell

v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

Counsel has informed us that she has delivered a copy of the brief to

appellant and informed him of his right to examine the appellate record and to file a

2 response. See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008).

Appellant has not filed a pro se response.

We have independently reviewed the entire record in this appeal, and we

conclude that no reversible error exists in the record, that there are no arguable

grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S.

at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—

determines, after full examination of proceedings, whether appeal is wholly

frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009)

(reviewing court must determine whether arguable grounds for review exist);

Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (same); Mitchell,

193 S.W.3d at 155 (reviewing court determines whether arguable grounds exist by

reviewing entire record). An appellant may challenge a holding that there are no

arguable grounds for appeal by filing a petition for discretionary review in the Court

of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.

We affirm the judgment of the trial court and grant counsel’s motion to

withdraw.1 Attorney R. Jeanette Parham must immediately send the notice

1 Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). 3 required by Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice

with the Clerk of this Court. See TEX. R. APP. P. 6.5(c).

PER CURIAM

Panel consists of Justices Jennings, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).