Marvin Kelly v. State

• Court: Court of Appeals of Texas
• Decided: February 1, 2012
• Docket: 10-11-00165-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-11-00165-CR

MARVIN KELLY, Appellant v.

THE STATE OF TEXAS, Appellee

From the 52nd District Court Coryell County, Texas Trial Court No. FSA-02-16411

MEMORANDUM OPINION

Marvin Kelly pled guilty to the offense of sexual assault of a child. See TEX.

PENAL CODE ANN. § 22.011 (West 2011). An adjudication of guilt was deferred and

Kelly was placed on deferred adjudication community supervision for 10 years. The

State filed a motion to adjudicate Kelly, and Kelly pled true to all counts of the State’s

motion. After a hearing, the trial court found Kelly violated his terms of community

supervision, adjudicated him guilty, and sentenced him to 15 years in prison. Kelly

appeals, and we affirm. Kelly’s appellate attorney filed an Anders brief in this appeal. See Anders v.

California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Kelly was informed of his

right to submit a brief on his own behalf, but he did not.

Counsel asserts that he reviewed the entire record regarding the sufficiency of

the indictment; jurisdiction, venue and limitations; adverse pretrial rulings and rulings

during trial affecting the course of the trial; sufficiency of the evidence; the hearing on

the State’s motion to adjudicate; the sentence imposed; and any other errors rising to the

level of plain error. Counsel concludes that he can find nothing in the record which

might arguably support an appeal. Counsel's brief evidences a professional evaluation

of the record for error, and we conclude that counsel performed the duties required of

appointed counsel. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex.

Crim. App. 1978); see also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008).

In reviewing an Anders appeal, we must, “after a full examination of all the

proceedings, … decide whether the case is wholly frivolous.” See Anders, 386 U.S. at

744; accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is

“wholly frivolous” or “without merit” when it “lacks any basis in law or fact.” McCoy

v. Court of Appeals, 486 U.S. 429, 439 n. 10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988).

Arguments are frivolous when they “cannot conceivably persuade the court.” Id. at 436.

An appeal is not wholly frivolous when it is based on “arguable grounds.” Stafford, 813

S.W.2d at 511.

Kelly v. State Page 2 After a review of the entire record in this appeal, we determine the appeal to be

wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).

Accordingly, we affirm the trial court's judgment.

Should Kelly 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 must file a pro se petition for discretionary review. Any petition for

discretionary review must be filed within thirty days from the date of this opinion or

the last timely motion for rehearing or timely motion for en banc reconsideration was

overruled by this Court. See TEX. R. APP. P. 68.2. Any petition and all copies of the

petition for discretionary review must be filed with the Clerk of the Court of Criminal

Appeals. See TEX. R. APP. P. 68.3. (Tex. Crim. App. 1997, amended eff. Sept. 1, 2011).

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. See also In re

Schulman, 252 S.W.3d at 409 n.22.

Counsel's request that he be allowed to withdraw from representation of Kelly is

granted. Additionally, counsel must send Kelly a copy of our decision, notify him of his

right to file a pro se petition for discretionary review, and send this Court a letter

certifying counsel's compliance with Texas Rule of Appellate Procedure 48.4. TEX. R.

APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 409 n.22.

TOM GRAY Chief Justice

Kelly v. State Page 3 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed February 1, 2012 Do not publish [CR25]

Kelly v. State Page 4