Kenneth Ray Johnson v. State

• Court: Court of Appeals of Texas
• Decided: August 13, 2013
• Docket: 03-12-00525-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-12-00523-CR NO. 03-12-00524-CR NO. 03-12-00525-CR NO. 03-12-00526-CR

Kenneth Ray Johnson, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT NOS. CR23,287, CR23,288, CR23,289 & CR23,290 HONORABLE JOHN YOUNGBLOOD, JUDGE PRESIDING

MEMORANDUM OPINION

On June 4, 2012, appellant Kenneth Ray Johnson, after being admonished by the trial

court, pled guilty to four offenses: (1) first-degree felony delivery of cocaine; (2) second-degree

felony delivery of a controlled substance; (3) state-jail felony delivery of a controlled substance; and

(4) first-degree felony delivery of a controlled substance. There was no plea-bargain agreement, and

the court found him guilty of all four offenses. On June 6th, at the punishment hearing, the court

heard evidence supporting the guilty pleas. At the close of the evidence for both sides, the court

deferred imposing punishment pending the return of a pre-sentence investigation report. On July 6th,

following testimony regarding the pre-sentence investigation, the trial court assessed judgment at

sixty years in prison. Appellant’s appointed counsel has filed a motion to withdraw supported by a brief

concluding that the appeal is frivolous and without merit. However, within his brief counsel discusses

an appellate issue suggested by appellant whether the trial court failed to properly admonish

appellant. See Tex. Code Crim. Proc. art. 26.13. Appellant also suggested to counsel two opinions

from the court of criminal appeals in support of his issue, but counsel found those two cases to be

inapposite to the issue suggested by appellant and determined that the issue lacks merit.

Counsel’s brief meets the requirements of Anders v. California, 386 U.S. 738 (1967),

by presenting a professional evaluation of the record and demonstrating that there are no arguable

grounds to be advanced. See Penson v. Ohio, 488 U.S. 75, 80 (1988); Anders, 386 U.S. at 743-44;

High v. State, 573 S.W.2d 807, 811-13 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684,

684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969).

Appellant’s attorney sent appellant a copy of the brief and advised him that he had the right to

examine the record and file a pro se brief. See Anders, 386 U.S. at 744; Jackson v. State, 485

S.W.2d 553, 553 (Tex. Crim. App. 1972). No pro se brief has been filed.

Having reviewed the evidence presented to the jury and the procedures that were

observed, nothing in the record might arguably support the appeal. We agree with counsel that

the appeal is frivolous and without merit. We grant counsel’s motion to withdraw and affirm the

judgments of conviction.1

1 No substitute counsel will be appointed. Should appellant wish to seek further review of his case by the court of criminal appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. See generally Tex. R. App. P. 68-79 (governing proceedings in the Texas Court of Criminal Appeals). Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the date this Court

2 __________________________________________

David Puryear, Justice

Before Justices Puryear, Pemberton and Rose

Affirmed

Filed: August 13, 2013

Do Not Publish

overrules the last timely motion for rehearing filed. See Tex. R. App. P. 68.2. The petition must be filed with this Court, after which it will be forwarded to the court of criminal appeals along with the rest of the filings in the cause. See Tex. R. App. P. 68.3, 68.7. Any petition for discretionary review should comply with rules 68.4 and 68.5 of the rules of appellate procedure. See Tex. R. App. P. 68.4, 68.5.