Marcus Jenkins v. State

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-12-00395-CR

MARCUS JENKINS APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

MEMORANDUM OPINION 1

Appellant Marcus D. Jenkins appeals the revocation of his felony deferred

adjudication community supervision, his conviction for the offense of continuous

violence against the family, and his sentence of five years’ confinement. We

affirm.

1 See Tex. R. App. P. 47.4. On June 14, 2011, Appellant pleaded guilty to the underlying offense of

assault bodily injury (continuous violence against the family). See Tex. Pen.

Code Ann. § 25.11 (West 2011). Under the terms of his plea deal, Appellant

received two years’ deferred adjudication community supervision. On October

28, 2011, the State filed its petition to proceed to adjudication. In its first

amended petition, filed on August 10, 2012, the State alleged that Appellant

failed to report for the months of July to December 2011 and January to July

2012; failed to pay the supervision fee for July to December 2011 and January to

July 2012; failed to pay the Crime Stoppers fee within thirty days from the date of

his community supervision; failed to report directly to the District Clerk’s office to

make payment arrangements; and, on August 5, 2012, gave a false or fictitious

name to a peace officer who had lawfully arrested or detained him. Appellant

pleaded true to violating the terms and conditions of his deferred adjudication

community supervision.

At the hearing, Appellant testified that he did not make payment

arrangements because he forgot, and he never returned to set up a payment

plan because he was scared. Appellant testified that he has six children and

three more on the way and is unemployed. He denied having a drug problem,

but occasionally smoked marijuana “to calm [himself] down” because he has an

“anger problem.” Appellant stated that he lived with his mother but had not lived

there long because he would get in trouble for “not wanting to follow the rules

and do what [he] wanted to do.”

2 Appellant’s court-appointed appellate counsel has filed a motion to

withdraw as counsel, accompanied by a brief in support of that motion. In the

brief, counsel states that in his professional opinion, this appeal is frivolous and

without merit. Counsel’s brief and motion meet the requirements of Anders v.

California, 386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting a professional

evaluation of the record demonstrating why there are no arguable grounds for

relief. Appellant had the opportunity to file a pro se brief but did not do so. The

State has not filed a brief.

Once an appellant’s court-appointed attorney files a motion to withdraw on

the grounds that an appeal is frivolous and fulfills the requirements of Anders, we

have a supervisory obligation to undertake an examination of the proceedings.

See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v.

State, 904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no pet.). Only

after our independent review is complete may we grant counsel’s motion to

withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).

We have carefully reviewed the record and counsel’s brief. We agree with

appellate counsel that this appeal is wholly frivolous and without merit; we find

nothing in the record that might arguably support the appeal. See Bledsoe v.

State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005); see also Meza v. State,

206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006). Accordingly, we grant

counsel’s motion to withdraw and affirm the trial court’s judgment. See Tex. R.

App. P. 43.2(a).

3 LEE GABRIEL JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: August 1, 2013