Robert Leon Jenkins, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: February 2, 2011
• Docket: 10-09-00233-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-09-00233-CR No. 10-09-00248-CR

ROBERT LEON JENKINS, JR., Appellant v.

THE STATE OF TEXAS, Appellee

From the 361st District Court Brazos County, Texas Trial Court Nos. 08-03830-CRM-361 and 08-03663-CRF-361

MEMORANDUM OPINION

Robert Leon Jenkins pled guilty, without the benefit of a plea bargain, to the

felony offenses of fraudulent use or possession of identifying information and forgery

of a financial instrument and the misdemeanor offense of failure to identify. TEX. PENAL

CODE ANN. §§ 32.51, 32.21(d), 38.02 (West Pamp. 2010). He was sentenced to 23 months

in a State Jail facility in each of the felony offenses, and 180 days in jail in the

misdemeanor offense. We affirm.

Jenkins's appellate attorney filed an Anders brief in both appeals. See Anders v.

California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Jenkins was informed of his right to submit a brief on his own behalf. Although Jenkins did not file a brief, the

State did file a response to counsel’s Anders brief.

Counsel's brief suggests as potential issues (1) voluntariness of the plea, (2)

incorrect order of the hearing, (3) excessive punishment, and (4) failure to make docket

entries. Counsel reviews the potential issues and concludes that the appeal is frivolous.

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.

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 Jenkins wish to seek further review of this case by the Texas Court of

Criminal Appeals, Jenkins must either retain an attorney to file a petition for

Jenkins v. State Page 2 discretionary review or Jenkins must 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 that was overruled by this Court.

See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with this

Court, after which it will be forwarded to the Texas Court of Criminal Appeals along

with the rest of the filings in this case. See TEX. R. APP. P. 68.3. 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 Jenkins

is granted. Additionally, counsel must send Jenkins a copy of our decision, notify

Jenkins 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

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed February 2, 2011 Do not publish [CR25]

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