Jimmy Lee Kenner v. The State of TexasAppeal from 54th District Court of McLennan County (memorandum opinion )

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IN THE TENTH COURT OF APPEALS No. 10-13-00143-CR JIMMY LEE KENNER, Appellant v. THE STATE OF TEXAS, Appellee From the 54th District Court McLennan County, Texas Trial Court No. 1991-120-C MEMORANDUM OPINION In 1991, appellant, Jimmy Lee Kenner, was convicted of burglary of a motor vehicle. Because appellant was a habitual-felony offender, the jury sentenced appellant to a prison term of ninety-nine years. This Court affirmed appellant s conviction on May 20, 1992, and the Texas Court of Criminal Appeals refused appellant s petition for discretionary review on September 23, 1992. Subsequently, on April 30, 2012, appellant filed a pro se motion for DNA testing of fingerprints lifted off the car, among other things. The trial court appointed an attorney to handle appellant s DNA motion. Thereafter, on March 7, 2013, appellant s counsel filed another DNA motion, alleging identity was an issue and requesting the testing of any biological material relating to any fingerprint dusting of evidence collected. The State responded that appellant did not establish that the requested DNA evidence would exculpate him and that there is no evidence remaining in this case to be tested. Without a hearing, the trial court denied appellant s DNA motions. Appellant appeals, and we affirm.1 I. ANDERS BRIEF Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967), appellant s court-appointed appellate counsel filed a brief and a motion to withdraw with this Court, stating that his review of the record yielded no grounds of error upon which an appeal can be predicated. Counsel s brief meets the requirements of Anders as it presents a professional evaluation demonstrating why there are no arguable grounds to advance on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) ( In Texas, an Anders brief need not specifically advance arguable points of error if counsel finds none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities. ) (citing Hawkins v. State, 112 S.W.3d 340, 343-44 (Tex. App. Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc). Appellant s brief was filed on December 27, 2013. Because appellant s brief has been filed, we dismiss appellant s Motion for Reconsideration and Motion for Extension of Time to File Brief as moot. 1 Kenner v. State Page 2 In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), appellant s counsel has carefully discussed why, under controlling authority, there are no reversible errors in the trial court s judgment. Counsel has informed this Court that he has: (1) examined the record and found no arguable grounds to advance on appeal; (2) served a copy of the brief and counsel s motion to withdraw on appellant; and (3) informed appellant of his right to review the record and to file a pro se response.2 See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. More than an adequate period of time has passed, and appellant has not filed a pro se response.3 See In re Schulman, 252 S.W.3d at 409. II. INDEPENDENT REVIEW Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988). We have reviewed the entire record and counsel s brief and have found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005) ( Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of The Texas Court of Criminal Appeals has held that the pro se response need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues. In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App. Waco 1997, no pet.)). 2 On February 5, 2014, we granted appellant s pro se motion for extension of time to file his pro se response. Accordingly, appellant s pro se response was due on March 24, 2014. To date, we have not received a pro se response from appellant. 3 Kenner v. State Page 3 appeals met the requirement of Texas Rule of Appellate Procedure 47.1. ); Stafford, 813 S.W.2d at 509. Accordingly, the judgment of the trial court is affirmed. III. MOTION TO WITHDRAW In accordance with Anders, appellant s attorney has asked this Court for permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex. App. Dallas 1995, no pet.) ( If an attorney believes the appeal is frivolous, he must withdraw from representing the appellant. To withdraw from representation, the appointed attorney must file a motion to withdraw accompanied by a brief showing the appellate court that the appeal is frivolous. ) (citations omitted)). We grant counsel s motion to withdraw. Within five days of the date of this Court s opinion, counsel is ordered to send a copy of this opinion and this Court s judgment to appellant and to advise him of his right to file a petition for discretionary review.4 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006). AL SCOGGINS Justice No substitute counsel will be appointed. Should appellant 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 id. at R. 68.3. Any petition for discretionary review should comply with the requirements of rule 68.4 of the Texas Rules of Appellate Procedure. See id. at R. 68.4; see also In re Schulman, 252 S.W.3d at 409 n.22. 4 Kenner v. State Page 4 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed April 3, 2014 Do not publish [CRPM] Kenner v. State Page 5

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