Kenneth Hayes v. State

• Court: Court of Appeals of Texas
• Decided: January 13, 2015
• Docket: 07-14-00178-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-14-00177-CR No. 07-14-00178-CR ________________________

KENNETH HAYES, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 140th District Court Lubbock County, Texas Trial Court Nos. 2002-400,482 & 2002-400,483; Honorable Jim Bob Darnell, Presiding

January 8, 2015

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

In July 2013, pursuant to article 64.01(c) of the Texas Code of Criminal

Procedure, counsel was appointed to represent Appellant, Kenneth Hayes, to pursue

motions for DNA testing of evidence related to his 2004 convictions for aggravated

sexual assault of a child. As required by article 64.02(a)(2)(B), the State’s attorney

responded with an affidavit explaining that law enforcement did not collect any physical

evidence that would contain biological material subject to DNA testing. See Murphy v. State, 111 S.W.3d 846, 848 (Tex. App.—Dallas 2003, no pet.). According to the

affidavit, Appellant’s two young victims had made delayed outcries of the sexual

assaults and the results of their examinations did not produce biological material to test.

Without a hearing, the trial court denied both motions and Appellant prosecuted these

appeals. In presenting this appeal, counsel has filed an Anders1 brief in support of a

motion to withdraw. We grant counsel’s motion and affirm.

In support of his motion to withdraw, counsel certifies he has conducted a

conscientious examination of the record, and in his opinion, the record reflects no

potentially plausible basis for reversal of Appellant’s conviction. Anders v. California,

386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Schulman, 252

S.W.3d 403, 406 (Tex. Crim. App. 2008). Counsel candidly discusses why, under the

controlling authorities, the record supports that conclusion. See High v. State, 573

S.W.2d 807, 813 (Tex. Crim. App. 1978). Counsel has demonstrated he has complied

with the requirements of Anders and In re Schulman by (1) providing a copy of the brief

to Appellant, (2) notifying him of his right to review the record and file a pro se response

if he desired to do so,2 and (3) informing him of his right to file a pro se petition for

discretionary review. In re Schulman, 252 S.W.3d at 408.3 By letter, this Court granted

Appellant an opportunity to exercise his right to file a response to counsel’s brief, should

1 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). 2 Pursuant to Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014), counsel provided a copy of the appellate record to Appellant. 3 Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary review upon execution of the Trial Court’s Certification of Defendant’s Right of Appeal, counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together with notification of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408 n.22 & 411 n.35. The duty to send the client a copy of the court of appeals’s decision is an informational one, not a representational one. It is ministerial in nature, does not involve legal advice, and exists after the court of appeals has granted counsel’s motion to withdraw. Id. at 411 n.33.

2 he be so inclined. Id. at 409 n.23. Appellant did not file a response. Neither did the

State favor us with a brief.

We have independently examined the entire record to determine whether there

are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488

U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); In re Schulman, 252 S.W.3d at

409; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We have found no

such issues. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). After

reviewing the record and counsel’s brief, we agree with counsel that there is no

plausible basis for reversal. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim.

App. 2005).

Accordingly, the trial court’s judgments are affirmed and counsel's motion to

withdraw is granted.

Patrick A. Pirtle Justice

Do not publish.