Kevin King v. State

• Court: Court of Appeals of Texas
• Decided: December 21, 2010
• Docket: 13-10-00160-CR
• Status: Published

Opinion

NUMBER 13-10-00160-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

KEVIN KING, Appellant,

v.

THE STATE OF TEXAS, Appellee,

On appeal from the 252nd District Court of Jefferson County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Benavides Memorandum Opinion by Chief Justice Valdez

Appellant, Kevin King, was charged by indictment with one count of assault on a

public servant, a third-degree felony.1 See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(1)

(Vernon Supp. 2010). Pursuant to a plea bargain with the State, King pleaded “guilty” to

1 The indictment included an enhancement paragraph stating that King is a habitual felony offender.

1 the offense. The trial court found King guilty of the offense, placed him on community

supervision for seven years, and imposed a $750 fine and $200 in court costs.

Later, the State filed a motion to revoke King’s community supervision, alleging

that King had failed to: (1) report to the trial court on specified dates; (2) adhere to a

court-imposed curfew; and (3) successfully complete the Jefferson County Drug

Intervention Program. At the hearing on the State’s motion to revoke, King pleaded

“true” to the first and third allegations and “not true” to the second allegation contained

in the State’s motion to revoke. The trial court accepted King’s pleas of “true” to the first

and third allegations of the State’s motion to revoke, revoked King’s community

supervision, sentenced him to ten years’ incarceration in the Institutional Division of the

Texas Department of Criminal Justice, and assessed $668 in court costs. This appeal

followed.

King’s appellate counsel, concluding that there are Ano meritorious issues for

appeal,@ filed an Anders brief, in which he reviewed the merits, or lack thereof, of the

appeal. We affirm.

I. ANDERS BRIEF

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), King’s

court-appointed appellate counsel has filed a brief with this Court, stating that his review

of the record yielded no grounds or error upon which an appeal can be predicated.

Although counsel=s brief does not advance any arguable grounds of error, it does

present a professional evaluation of the record demonstrating why there are no

arguable grounds to be advanced in this appeal. See In re Schulman, 252 S.W.3d 403,

407 n.9 (Tex. Crim. App. 2008) (AIn Texas, an Anders brief need not specifically

2 advance >arguable= points of error if counsel finds none, but it must provide record

references to the facts and procedural history and set out pertinent legal authorities.@)

(citing Hawkins v. State, 112 S.W.3d 340, 343-44 (Tex. App.BCorpus Christi 2003, no

pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978), King’s counsel has carefully discussed why, under controlling authority,

there are no errors in the trial court's judgment. Counsel has informed this Court that he

has: (1) examined the record and found no arguable grounds to advance in this appeal,

(2) served a copy of the brief and counsel=s motion to withdraw on King, and (3)

informed King of his right to review the record and to file a pro se response in this

matter.2 See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In re

Schulman, 252 S.W.3d at 409 n.23. More than an adequate period of time has passed,

and King has not filed a pro se response. See In re Schulman, 252 S.W.3d at 409.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488

U.S. 75, 80 (1988). We have reviewed the entire record and counsel's brief and have

found nothing that would arguably support an appeal in this matter. See Bledsoe v.

State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005) (ADue to the nature of Anders

briefs, by indicating in the opinion that it considered the issues raised in the briefs and

reviewed the record for reversible error but found none, the court of appeals met the 2 The Texas Court of Criminal Appeals has held that Athe pro se response need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues.@ In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.–Waco 1997, no pet.)).

3 requirement of Texas Rule of Appellate Procedure 47.1.@); Stafford, 813 S.W.2d at 509.

Accordingly, we affirm the judgment of the trial court.

III. MOTION TO WITHDRAW

In accordance with Anders, King’s attorney has asked this Court for permission

to withdraw as counsel. See Anders, 386 U.S. at 744; see also In re Schulman, 252

S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex. App.BDallas

1995, no pet.) (noting that A[i]f an attorney believes the appeal is frivolous, he must

withdraw from representing the appellant. To withdraw from representation, the

appointed attorney must file a motion to withdraw accompanied by a brief showing the

appellate court that the appeal is frivolous@) (citations omitted)). We grant counsel=s

motion to withdraw. Within five days of the date of this Court=s opinion, counsel is

ordered to send a copy of the opinion and judgment to King and advise him of his right

to file a petition for discretionary review.3 See TEX. R. APP. P. 48.4; see also In re

Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim.

App. 2006).

____________________ ROGELIO VALDEZ Chief Justice Do not publish. TEX. R. APP. P. 47.2(b) Delivered and filed the 21st day of December, 2010.

3 No substitute counsel will be appointed. Should King wish to seek further review of this case by the Texas 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. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3; 68.7. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.