Kody Lee Broxton v. State

Opinion

ACCEPTED 03-15-00040-CR 4760382 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/3/2015 2:57:33 PM JEFFREY D. KYLE CLERK No. 03-15-0040-CR, 03-15-0041-CR & 03-15-0042-CR

KODY BROXTON ) IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS V. ) AUSTIN,SUPREME FOR THE THIRD TEXAS 4/8/2015 2:08:00 PM STATE OF TEXAS ) JUDICIAL DISTRICT JEFFREYOF TEXAS D. KYLE Clerk MOTION FOR LEAVE TO WITHDRAW AS COUNSEL ON APPEAL UNDER ANDERS v. CALIFORNIA

TO THE HONORABLE JUSTICES OF SAID COURT:

COMES NOW, Ken Mahaffey, attorney of record for, Kody Broxton, the Appellant, in the

above-entitled and numbered cause and files this motion to withdraw because the record reveals no

meritorious issue to argue for reversal. In support thereof counsel would show the following:

1. Appellate Counsel Must Withdraw If Record Does Not Show Reversible Error. When

the trial record does not support any legal argument that could persuade a reviewing court to reverse,

appellate counsel must inform the appellate court and the appellant. Anders v. California, 386 U.S.

738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (advancing frivolous arguments on appeal prohibited).

Counsel is under an ethical obligation to withdraw because it is improper to make arguments for

reversal that are not grounded in the record and supported by the law. Id.; Nguyen v. State, 11 S.W.3d

376, 378 (Tex. App. -- Houston [14th Dist.] 2000, no pet.); R. 3.01, Tex. Disciplinary R. Prof.

Conduct. (1989) (counsel has duty to disclose contrary authority to the court).

2. Counsel Appointed. On Dec. 03, 2014, the undersigned counsel, movant, was appointed

by the 264th District Court of Bell County to represent Appellant on appeal.

3. Counsel Has Reviewed the Record and Law. The movant has thoroughly reviewed the

clerk’s and reporter’s records in this cause and the law in relation to possible meritorious arguments

for reversal.

Page 1 4. No Reversible Error Found. Counsel has determined there are no issues that could

persuade an appellate court to reverse the judgment of conviction from the current record. Any other

grounds not reflected in the record would require supplementation of the record by new hearings to

document those claims. See Aldrich v. State, 104 S.W.3d 890, 896 (Tex. Cr. App. 2003)(where a

matter is not shown in the record from direct appeal, proper procedure to secure documentation is

habeas corpus).

5. Appointed Counsel Must File Brief Before Withdrawal. When counsel is appointed,

the lawyer must file a brief with the appellate court detailing the record and discussing any

cognizable legal issues. The brief must also provide authority to show why each issue would not

result in reversal and would be considered frivolous by the reviewing court. Nguyen v. State, 11

S.W.3d 376, 378 (Tex. App. -- Houston [14th Dist.] 2000, no pet.).

6. Anders Brief Filed This Date. Counsel, as movant, has prepared and filed a "Anders" brief

with this Court on this date, discussing the record and detailing why each identifiable issue would not

support a bone fide argument that could persuade an appellate court to reverse.

7. Counsel Has Informed Appellant of the Right to Continue the Appeal. Along with the

Anders brief, Counsel is required to notify Appellant of his right to continue the appeal by filing a pro-

se brief and to provide information on how to obtain the appellate record. Nguyen, supra, at 379. A

copy of this Motion to Withdraw and the Anders brief in support of the motion have been served on

Appellant by certified mail.

8. Proof of Service. A copy of a letter sent by certified mail explaining Appellant’s right

continue the appeal, detailing the procedural steps for filing a pro se brief, and instructions on how

to obtain the appellate record is attached to this motion as Exhibit “A”.

9. Appellant’s Mailing Address. Appellant’s mailing address is as follows: Kody Broxton,

Page 2 TDCJ No. 01972710, Bartlett State Jail Unit, 1018 Arnold Drive, Bartlett TX 76511.

PRAYER FOR RELIEF

WHEREFORE, PREMISES, CONSIDERED, the undersigned counsel respectfully request

that he be permitted to withdraw from representation in this appeal and that the Court independently

review the record to determine if indeed there is no arguable point on appeal and if an issue is found

appoint new counsel for Appellant.

Respectfully Submitted,

Ken Mahaffey Counsel for Appellant P.O. Box 684585 Austin, Texas 78768 Phone & Fax (512) 444-6557 St. Bar. No. 12830050 Ken Mahaffey@yahoo.com

CERTIFICATE OF SERVICE

The above signature certifies that on April 3, 2015, this document was sent to the Bell

County D.A.’s Office, P.O. Box 540, Belton, Texas 76513 and, by certified mail, to Kody

Broxton, TDCJ No. 01972710, Bartlett State Jail, 1018 Arnold Drive, Bartlett TX 76511.

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