Kenneth Dewayne Kelly v. State

• Court: Court of Appeals of Texas
• Decided: August 9, 2001
• Docket: 13-00-00396-CR
• Status: Published

Opinion

NUMBER 13-00-396-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

KENNETH DEWAYNE KELLY, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the Criminal District Court

of Dallas County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Yañez and Castillo

Opinion by Justice Valdez

Appellant, Kenneth Dewayne Kelly, pleaded guilty to the offense of Possession of a Controlled Substance (cocaine), less than one gram, with habitual enhancement. ⁽¹⁾ There being no plea agreement, the trial court assessed his punishment at 18 years imprisonment. This appeal ensued.

A. Appellant's Appeal

Appellant's attorney has filed a brief in which he states that he has reviewed the clerk's record and reporter's record and concludes that appellant's appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744 (1967). The brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal. See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). In the brief, appellant's attorney also states that he has informed appellant of his right to review the appellate record and to file a pro se brief. No such brief has been filed.

Upon receiving a "frivolous appeal" brief, appellate courts must conduct "a full examination of all the proceedings to decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S. 75, 80 (1988). We have carefully reviewed the appellate record and counsel's brief; find nothing in the record that might arguably support the appeal; and agree with appellant's counsel that the appeal is wholly frivolous and without merit. See Stafford, 813 S.W.2d at 511.

The judgment of the trial court is affirmed.

B. Counsel's Motion to Withdraw

In accordance with Anders, appellant's attorney has asked permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744. We grant the attorney's motion to withdraw. We order appellant's attorney to notify appellant of the disposition of this appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).

_________________

ROGELIO VALDEZ

Chief Justice

Do not publish .

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 9th day of August, 2001.

1. Tex. Health & Safety Code Ann. §418.115(b)(Vernon Supp. 2001); Tex. Pen. Code Ann. §12.42(a)(2)(Vernon Supp. 2001).