Kevin Rand v. State

• Court: Court of Appeals of Texas
• Decided: April 4, 2013
• Docket: 13-12-00486-CR
• Status: Published

Opinion

NUMBER 13-12-00486-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

KEVIN RAND, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 94th District Court of Nueces County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion by Justice Longoria Appellant, Kevin Rand, plead guilty to passing a forged check, a state jail felony.

See TEX. PENAL CODE ANN. § 32.21(b) (West 2011). The court assessed two years’

imprisonment, probated to community supervision for a term of four years. The State

subsequently filed a motion to revoke, alleging eleven violations of the conditions of appellant’s supervision.1 Appellant plead “true” to one allegation (that he was behind on

payment of court costs and other fees) and “not true” to the others. The State’s motion

to revoke alleged that appellant had contact on multiple occasions with a woman he

was specifically prohibited from seeing by the terms of his supervision. The State also

alleged that appellant committed the offenses of making terrorist threats, harassment

and multiple counts of assault against that woman and her boyfriend. After conducting

an oral hearing with testimony from multiple witnesses, including appellant, the court

found the allegations to be “true” regarding the woman and “not true” regarding the

woman’s boyfriend. The court revoked appellant’s supervision and assessed the

original sentence of two years in state jail. This appeal followed.

I. ANDERS BRIEF Appellant’s court-appointed appellant counsel has filed a brief and motion to

withdraw with this Court pursuant to Anders v. California, 386 U.S. 738, 744 (1967),

stating that his review of the record yielded no grounds of error upon which to base an

appeal. Counsel’s brief meets the requirements of Anders as it presents a professional

evaluation demonstrating why there are no arguable grounds to advance on appeal.

See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“In Texas, an

Anders brief need not specifically 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.—Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W.3d 503, 510 n.3 (Tex.

Crim. App. 1991).

1 This was the fourth motion to revoke filed against appellant by the State. The term of appellant’s supervision was extended as a result of prior violations.

2 In compliance with High v. State, 507 S.W.2d 807, 813 (Tex. Crim. App. [Panel

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

there is no reversible error 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 on

appeal; (2) served a copy of the brief and counsel’s motion to withdraw on appellant;

and (3) informed appellant of his right to review the record and to file a pro se response.

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. Appellant has not responded by filing a pro se response.

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 we

have found nothing that would arguably support an appeal. See Bledsoe, 178 S.W.3d

at 827–28 (“Due 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 requirement of Texas Rule of Appellate

Procedure 47.1”). We have reviewed the record and agree that there is no reversible

error. Accordingly, the judgment of the trial court is affirmed.

III. MOTION TO WITHDRAW In accordance with Anders, appellant’s attorney asked this Court for permission

to withdraw as counsel for appellant. 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.—Dallas 1995, no pet.) (“[I]f an attorney believes the appeal is frivolous, he

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

3 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. Counsel is ordered to send a copy of this opinion and this Court’s

judgment to appellant within five days of the date of this Court’s opinion, and to advise

him of his right to file a petition for discretionary review with the court of criminal

appeals. 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).2

_______________________ NORA L. LONGORIA Justice Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 4th day of April, 2013.

2 No substitute counsel will be appointed. Should appellant 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 or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Effective September 1, 2011, any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretion review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4.