Kim Darrell Warner v. State

Opinion

Opinion issued November 29, 2012

In The Court of Appeals For The First District of Texas ____________

NO. 01-10-00065-CR ____________

KIM DARRELL WARNER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 1189161

MEMORANDUM OPINION Appellant Kim Darrell Warner pleaded guilty to the felony offense of

aggravated robbery, without an agreed recommendation from the State regarding

punishment. See TEX. PENAL CODE ANN. § 29.03 (West 2011). The trial court

found appellant guilty and assessed punishment at 50 years’ confinement. The trial court certified that this is not a plea bargain case and that appellant has the right to

appeal. Appellant timely filed a notice of appeal.

Appellant’s appointed counsel on appeal has filed a motion to withdraw,

along with an Anders brief stating that the record presents no reversible error and

therefore the appeal is without merit and is frivolous. See Anders v. California,

386 U.S. 738, 87 S. Ct. 1396 (1967).

Counsel’s brief meets the Anders requirements by presenting a professional

evaluation of the record and supplying us with references to the record and legal

authority. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State,

573 S.W.2d 807, 812–13 (Tex. Crim. App. 1978). Counsel indicates that he has

thoroughly reviewed the record and that he is unable to advance any grounds of

error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400;

Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no

pet.).

Counsel has also notified us that he delivered a copy of the brief to appellant

and informed him of his right to examine the appellate record and to file a

response. See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008).

Appellant has not filed a pro se response.

We have independently reviewed the entire record in this appeal, and we

conclude that no reversible error exists in the record, that there are no arguable

2 grounds for review, and that therefore the appeal is frivolous. See Anders, 386

U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not

counsel—determines, after full examination of proceedings, whether appeal is

wholly frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009)

(explaining that frivolity is determined by considering whether there are “arguable

grounds” for review); Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App.

2005) (reviewing court must determine whether arguable grounds for review

exist); Mitchell, 193 S.W.3d at 155 (reviewing court determines whether arguable

grounds exist by reviewing entire record). An appellant may challenge a holding

that there are no arguable grounds for appeal by filing a petition for discretionary

review in the Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.

We affirm the judgment of the trial court and grant counsel’s motion to

withdraw.1 Attorney Danny Easterling must immediately send the notice required

by Texas Rule of Appellate Procedure 6.5(c) and file a copy of the notice with the

Clerk of this Court. See TEX. R. APP. P. 6.5(c).

PER CURIAM

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).

1 Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) 3