Kenneth L. Gilliland v. State

• Court: Court of Criminal Appeals of Texas
• Decided: August 10, 2016
• Docket: 12-16-00058-CR
• Status: Published

Opinion

NO. 12-16-00058-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KENNETH L. GILLILAND, § APPEAL FROM THE 7TH APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION PER CURIAM Kenneth L. Gilliland appeals his conviction for driving while intoxicated. Appellant’s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm.

BACKGROUND Appellant was indicted for the offense of driving while intoxicated (DWI), a third degree felony as alleged due to prior DWI convictions.1 Moreover, the indictment alleged that Appellant had two prior felony convictions, thereby invoking the habitual offender statute, which mandates a sentence of imprisonment ranging from twenty-five to ninety-nine years or life.2 The State offered Appellant forty-five years of imprisonment in exchange for his guilty plea, which he rejected. Nevertheless, Appellant later made an open plea of “guilty” to the offense, and also pleaded “true” to the enhancements. After a hearing, the trial court accepted Appellant’s plea and found him guilty of the offense. After a punishment hearing, the trial court found that the

1 See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West Supp. 2015). 2 See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2015). enhancements were true and sentenced Appellant to forty years of imprisonment. This appeal followed.

ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA Appellant’s counsel filed a brief in compliance with Anders and Gainous, stating that he has diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error and that there is no error upon which an appeal can be predicated. From our review of counsel’s brief, it is apparent that counsel is well acquainted with the facts in this case. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978), counsel’s brief presents a chronological summation of the procedural history of the case, and further states that counsel is unable to raise any arguable issues for appeal. Appellant filed a pro se brief in which he contends that the indictment is fundamentally defective, that he received ineffective assistance of counsel at trial and on appeal, and that the trial court abused its discretion under the Sixth Amendment when it allowed appellate counsel to file an Anders brief containing false assertions of fact. We have considered counsel’s brief and Appellant’s pro se brief, and conducted our own independent review of the appellate record. We found no reversible error. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). Accordingly, we conclude the appeal is wholly frivolous.

CONCLUSION As required by Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991), Appellant’s counsel has moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We are in agreement with Appellant’s counsel that the appeal is wholly frivolous. Accordingly, his motion for leave to withdraw is granted, and the trial court’s judgment is affirmed. See TEX. R. APP. P. 43.2. As a result of our disposition of this case, Appellant’s counsel has a duty to, within five days of the date of this opinion, send a copy of the opinion and judgment to Appellant and advise him of his right to file a petition for discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. Should Appellant wish to seek review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review on his behalf or he must file a petition for discretionary review pro se. Any

2 petition for discretionary review must be filed within thirty days from the date of this court’s judgment or the date the last timely motion for rehearing was overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See In re Schulman, 252 S.W.3d at 408 n.22. Opinion delivered August 10, 2016. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

3 COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 10, 2016

KENNETH L. GILLILAND, Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 7th District Court of Smith County, Texas (Tr.Ct.No. 007-1219-15)

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.