Rachel Michelle Kirksey v. State ( 2015 )

NOS. 12-14-00349-CR
12-14-00354-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
RACHEL MICHELLE KIRKSEY, § APPEALS FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Rachel Michelle Kirksey appeals her convictions for possession of a controlled substance
and tampering with physical evidence. 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
In July 2014, Appellant was indicted for possession of a controlled substance, a state jail
felony as alleged in the indictment. In a separate case, Appellant was indicted for tampering
with physical evidence, a third degree felony.
Appellant pleaded “guilty” pursuant to a negotiated plea agreement on both offenses. In
accordance with the agreement, the trial court found Appellant guilty of the possession of a
controlled substance charge, sentenced her to two years of confinement in a state jail facility,
suspended her sentence, and placed her on community supervision for a period of five years.
The trial court also found Appellant guilty of the tampering with physical evidence charge,
sentenced her to imprisonment for a period of ten years, suspended her sentence, and placed her
on community supervision for a period of five years.
In September 2014, the State filed an application in each case to revoke Appellant’s
community supervision.1 In the amended applications, the State alleged that Appellant failed to
pay various fees required as conditions of her community supervision, and also that she failed to
report to her community supervision officer on several occasions. Appellant pleaded “true” to
all the allegations in the State’s applications.
Accordingly, the trial court sentenced Appellant to twelve months of confinement in a
state jail facility for the possession of a controlled substance charge, and five years of
imprisonment for the tampering with physical evidence charge. The trial court ordered that the
sentences be served concurrently. 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 has 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.2 We have likewise reviewed the record for reversible error and have found
none. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
CONCLUSION
As required by Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991), Appellant’s
counsel has moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407 (Tex.
Crim. App. 2008) (orig. proceeding). We are in agreement with Appellant’s counsel that the
appeal is wholly frivolous. Accordingly, his motion for leave to withdraw is hereby granted, and
the trial court’s judgment is affirmed. See TEX. R. APP. P. 43.2.
1
The State filed amended applications to revoke Appellant’s community supervision in October 2014.
2
Counsel for Appellant states in his motion to withdraw that he provided Appellant with a copy of this
brief. Appellant was given time to file her own brief in this cause. The time for filing such a brief has expired and
no pro se brief has been filed.
2
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
her of her 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, she must either retain an attorney to file a petition for
discretionary review on her behalf or she must file a petition for discretionary review pro se.
Any petition for discretionary review must be filed within thirty days from the date of this
court’s judgment or the date the last timely motion for rehearing was overruled by this court. See
TEX. R. APP. 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.
BRIAN HOYLE
Justice
Opinion delivered July 22, 2015.
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
JULY 22, 2015
NO. 12-14-00349-CR
RACHEL MICHELLE KIRKSEY,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0777-14)
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.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JULY 22, 2015
NO. 12-14-00354-CR
RACHEL MICHELLE KIRKSEY,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0778-14)
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.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.