William Burkhart Jr. v. State

• Court: Court of Appeals of Texas
• Decided: February 7, 2019
• Docket: 02-18-00139-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-18-00139-CR ___________________________

WILLIAM BURKHART JR., Appellant

V.

THE STATE OF TEXAS

On Appeal from the 396th District Court Tarrant County, Texas Trial Court No. 1522957D

Before Bassel, Kerr, and Pittman, JJ. Per Curiam Memorandum Opinion MEMORANDUM OPINION

Appellant William Burkhart Jr. appeals from his conviction for evading arrest

or detention with a vehicle. See Tex. Penal Code Ann. § 38.04(b)(2)(A) (West 2016).

We affirm.

A grand jury indicted Burkhart for evading arrest or detention with a vehicle.

The indictment included a deadly-weapon-finding notice and a repeat-offender notice

alleging that Burkhart had previously been convicted of evading arrest or detention in

January 2009. Burkhart waived his right to a jury at both the guilt-innocence and

punishment phases, and he pleaded guilty to the offense charged in the indictment

without the benefit of a plea-bargain agreement. Burkhart also pleaded “true” to the

deadly-weapon-finding notice and the repeat-offender notice. The trial court

accepted Burkhart’s guilty plea and pleas of “true” to the notices and ordered the

preparation of a presentence investigation report (PSI). After the PSI was prepared,

the trial court held a punishment hearing at which Burkhart called two witnesses to

testify and took the stand himself. After reviewing the PSI and hearing testimony and

closing arguments, the trial court sentenced Burkhart to five years’ confinement.

Burkhart’s court-appointed appellate counsel has filed a motion to withdraw as

counsel and a brief in support of that motion. Counsel’s brief and motion meet the

requirements of Anders v. California by presenting a professional evaluation of the

record demonstrating why there are no arguable grounds for relief. See 386 U.S. 738,

744, 87 S. Ct. 1396, 1400 (1967). In compliance with Kelly v. State, counsel notified

2 Burkhart of his motion to withdraw, provided him a copy of the brief, informed him

of his right to file a pro se response, informed him of his pro se right to seek

discretionary review should this court hold the appeal is frivolous, and took concrete

measures to facilitate Burkhart’s review of the appellate record. See 436 S.W.3d 313,

319 (Tex. Crim. App. 2014). Burkhart had the opportunity to file a pro se response to

the Anders brief and has done so. 1 The State submitted a letter stating that it would

not be filing a brief.

As the reviewing court, we must conduct an independent evaluation of the

record to determine whether counsel is correct in determining that the appeal is

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

State, 904 S.W.2d 920, 923 (Tex. App.—Fort Worth 1995, no pet.). Only then 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, counsel’s brief, and Burkhart’s pro se

responses. We agree with counsel that this appeal is wholly frivolous and without

merit; we find nothing in the record that arguably might support an appeal. See Bledsoe

Initially, we construed Burkhart’s pro se August 21, 2018 letter as a response 1

to the Anders brief. Burkhart later filed a “Motion for Extension of Time to File Appellate Brief,” and we allowed him to file a supplemental pro se response to counsel’s Anders brief.

3 v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005). Accordingly, we grant

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

Per Curiam Do Not Publish Tex. R. App. P. 47.2(b) Delivered: February 7, 2019