Dustin Edward Klendworth v. State ( 2019 )

NO. 12-18-00168-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DUSTIN EDWARD KLENDWORTH, § APPEAL FROM THE 392ND
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § HENDERSON COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Dustin Edward Klendworth appeals from his conviction for possession of a controlled
substance. Appellant’s counsel filed a brief in compliance with Anders v. California, 386 U.S.
738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim.
App. 1969). We affirm.
BACKGROUND
Appellant was charged by indictment with possession of four or more but less than 200
grams of methamphetamine. Appellant pleaded “not guilty” and the matter proceeded to a jury
trial. At trial, the jury heard evidence that Appellant was the passenger in a vehicle that was pulled
over because it fit the description of a vehicle that fled the scene of a stabbing. Officers with the
Henderson County Sheriff’s Department identified Appellant and learned he had an outstanding
warrant. During the search incident to arrest, Deputy Kevin McCarley felt an object in Appellant’s
pant leg. The deputy moved the object down Appellant’s leg until it fell out of his pants. The
object appeared to be a clear bag that had been rolled up with black electrical tape. The substance
in the bag was later determined to be 8.5 grams of methamphetamine. Following evidence and
argument, the jury found Appellant “guilty” of possession of a controlled substance. After hearing
evidence and argument during the sentencing portion of trial, the jury sentenced Appellant to nine
years confinement. This appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant’s counsel filed a brief in compliance with Anders v. California and Gainous v.
State. Appellant’s counsel states that he diligently reviewed the appellate record and is of the
opinion that the record reflects no reversible error and that there is no error upon which an appeal
can be predicated. He further relates that he is well acquainted with the facts in this case. In
compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel
Op.] 1978), Appellant’s brief presents a chronological summation of the procedural history of the
case and further states that Appellant’s counsel is unable to raise any arguable issues for appeal. 1
We have likewise reviewed the record for reversible error and have found none.
CONCLUSION
As required by Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991), Appellant’s
counsel moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim.
App. 2008) (orig. proceeding). We carried the motion for consideration with the merits. Having
done so and finding no reversible error, Appellant’s counsel’s motion for leave to withdraw is
hereby granted and the appeal is affirmed.
As a result of our disposition of this case, Appellant’s counsel has a duty to, within five
days of the date of this opinion, send a copy of the opinion and judgment to Appellant and advise
him of his right to file a petition for discretionary review. See TEX. R. APP. P. 48.4; In re
Schulman, 252 S.W.3d at 411 n.35. Should Appellant wish to seek review of this case by the
Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for
discretionary review on his behalf or he must file a petition for discretionary review pro se. Any
petition for discretionary review must be filed within thirty days from the date of either this opinion
or the date that the last timely motion for rehearing was overruled by this Court. See TEX. R. APP.
1
In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief, notified
Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took
concrete measures to facilitate Appellant’s review of the appellate record. See Kelly v. State, 436 S.W.3d 313, 319
(Tex. Crim. App. 2014). Appellant was given time to file his own brief. The time for filing such a brief has expired,
and no pro se brief has been filed.
2
P. 68.2. Any petition for discretionary review must be filed with the Texas Court of Criminal
Appeals. See TEX. R. APP. P. 68.3(a). Any petition for discretionary review should comply with
the requirements of Texas Rule of Appellate Procedure 68.4. See In re Schulman, 252 S.W.3d at
408 n.22.
Opinion delivered September 4, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 4, 2019
NO. 12-18-00168-CR
DUSTIN EDWARD KLENDWORTH,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 392nd District Court
of Henderson County, Texas (Tr.Ct.No. CR17-0354-392)
THIS CAUSE came to be heard on the appellate record and brief filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.