Kody Douglas Taylor v. State ( 2014 )

Opinion filed December 11, 2014
In The
Eleventh Court of Appeals
__________
No. 11-14-00094-CR
____________
KODY DOUGLAS TAYLOR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court
Taylor County, Texas
Trial Court Cause No. 25441A
MEMORANDUM OPINION
Kody Douglas Taylor entered an open plea of guilty to the state jail felony
offense of possession of methamphetamine. After a presentence investigation
report was prepared, the trial court convicted Appellant, and it assessed his
punishment at confinement in the State Jail Division of the Texas Department of
Criminal Justice for a term of two years. We dismiss the appeal.
Appellant’s court-appointed counsel has filed a motion to withdraw. The
motion is supported by a brief in which counsel professionally and conscientiously
examines the record and applicable law and concludes that the appeal is frivolous.
Counsel has provided Appellant with a copy of the motion to withdraw, the brief,
and a motion for pro se access to the record, and counsel has advised Appellant of
his right to review the record and file a response to counsel’s brief. 1 Court-
appointed counsel has complied with the requirements of Anders v. California, 386
U.S. 738 (1967); Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014); In re
Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); Stafford v. State, 813 S.W.2d
503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App.
1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State,
436 S.W.2d 137 (Tex. Crim. App. 1969); and Eaden v. State, 161 S.W.3d 173
(Tex. App.—Eastland 2005, no pet.).
Appellant has filed a pro se response to counsel’s motion to withdraw and
supporting brief.2 He contends that his trial counsel rendered ineffective
assistance. In addressing an Anders brief and pro se response, a court of appeals
may only determine (1) that the appeal is wholly frivolous and issue an opinion
explaining that it has reviewed the record and finds no reversible error or (2) that
arguable grounds for appeal exist and remand the cause to the trial court so that
new counsel may be appointed to brief the issues. Schulman, 252 S.W.3d at 409;
Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). Following the
procedures outlined in Anders and Schulman, we have independently reviewed the
record, and we agree that the appeal is without merit and should be dismissed.
Schulman, 252 S.W.3d at 409. We note that, with respect to allegations of
1
Counsel has also provided Appellant with a copy of the reporter’s record and the clerk’s record
in this appeal.
2
We initially granted Appellant thirty days in which to exercise his right to file a response to
counsel’s brief. Appellant filed a pro se motion to extend the time to file a response. We granted the
motion and ordered that the response was due on or before November 10, 2014. Appellant filed his pro se
response on November 7, 2014.
2
ineffective assistance of counsel, the record on direct appeal is generally
undeveloped and rarely sufficient to overcome the presumption that trial counsel
rendered effective assistance. See Thompson v. State, 9 S.W.3d 808, 813–14 (Tex.
Crim. App. 1999). Appellant acknowledges in his response that his ineffective-
assistance claims involve matters that are “outside of [the] record.” He states that
“non-frivolous issues exist outside the clerk’s record and outside the reporter’s
record.”
We note that counsel has the responsibility to advise Appellant that he may
file a petition for discretionary review with the clerk of the Texas Court of
Criminal Appeals seeking review by that court. TEX. R. APP. P. 48.4 (“In criminal
cases, the attorney representing the defendant on appeal shall, within five days
after the opinion is handed down, send his client a copy of the opinion and
judgment, along with notification of the defendant’s right to file a pro se petition
for discretionary review under Rule 68.”). Likewise, this court advises Appellant
that he may file a petition for discretionary review pursuant to TEX. R. APP. P. 68.
The motion to withdraw is granted, and the appeal is dismissed.
PER CURIAM
December 11, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
3