Lincoln Wade Kilsby v. The State of Texas Appeal from 36th District Court of San Patricio County (memorandum opinion)
Annotate this Case
Download PDF
NUMBER 13-17-00669-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG LINCOLN WADE KILSBY, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 36th District Court of San Patricio County, Texas. MEMORANDUM OPINION Before Justices Contreras, Longoria, and Hinojosa Memorandum Opinion by Justice Contreras After a jury trial, appellant Lincoln Wade Kilsby was found guilty of murder, a firstdegree felony. See TEX. PENAL CODE ANN. § 19.02 (West, Westlaw through 2017 1st C.S.). The jury assessed appellant’s punishment at eighty-four years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant appealed, and his court-appointed appellate counsel has filed an Anders brief stating there are no arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm. I. ANDERS BRIEF Appellant’s appellate counsel has filed a motion to withdraw and a brief in support thereof in which he states that he has diligently reviewed the entire record and has found no non-frivolous grounds for appeal. See id.; High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). Counsel’s brief meets the requirements of Anders as it presents a thorough, professional evaluation of the record showing why there are no arguable grounds for advancing an appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“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). In compliance with High v. State, 573 S.W.2d at 813, and Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014), counsel carefully discussed why, under controlling authority, there is no reversible error in the trial court’s judgments. Appellant’s counsel has also informed this Court that he has: (1) notified appellant that he has filed an Anders brief and a motion to withdraw; (2) provided appellant with copies of both filings; (3) informed appellant of his rights to file a pro se response,1 to review the record 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 1 2 preparatory to filing that response, and to seek discretionary review in the Texas Court of Criminal Appeals if this Court finds that the appeal is frivolous; and (4) provided appellant with a form motion for pro se access to the appellate record with instructions to file the motion in this Court. See Anders, 386, U.S. at 744; Kelly, 436 S.W.3d at 319–20; see also In re Schulman, 252 S.W.3d at 609 n.23. More than adequate time has passed, and appellant has not filed a pro se response. 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 (1988). We have reviewed the record and counsel’s brief, and we have found no reversible error. 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 appeals met the requirement of Texas Rule of Appellant Procedure 47.1.”); Stafford, 813 S.W.2d at 509. III. MOTION TO WITHDRAW In accordance with Anders, appellant’s counsel has asked this Court for permission to withdraw. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffrey v. State, 903 S.W.3d 776, 779–80 (Tex. App.—Dallas 1995, no pet.) (“[I]f an attorney believes the appeal is frivolous, he must withdraw from representing the appellant. To withdraw from representation, the appointed attorney must 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). 3 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 opinion, we order counsel to send a copy of this opinion and judgment to appellant and to advise him of his right to file any petition for discretionary review.2 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, 67 (Tex. Crim. App. 2006). IV. CONCLUSION We affirm the trial court’s judgment. DORI CONTRERAS Justice Do not publish. TEX. R. APP. P. 47.2(b). Delivered and filed the 31st day of August, 2018. 2 No substitute counsel will be appointed. If appellant seeks further review by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or 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 or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. A petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals, see id. R. 68.3(a), and must comply with the requirements of the Texas Rule of Appellate Procedure. See id. R. 68.4. 4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
