Jakan Arthur Kendrick v. State ( 2009 )

NO. 07-08-0154-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 12, 2009
______________________________
JAKAN ARTHUR KENDRICK, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY;
NO. 1072467D; HONORABLE MICHAEL THOMAS, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Jakan Arthur Kendrick appeals from his conviction by jury of aggravated
robbery with a deadly weapon and the trial court’s sentence of forty-one years confinement
in the Institutional Division of the Texas Department of Criminal Justice.1 Appellant's
attorney has filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct.
1396, 18 L. Ed. 2d 493 (1967) and In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008).
1
See Tex. Penal Code Ann. § 29.03(a) (Vernon 2007). This is a first degree felony
punishable by life or for any term of not more than 99 years or less than 5 years and a fine
not to exceed $10,000. Tex. Penal Code Ann. § 12.32 (Vernon 2003).
Agreeing with appointed counsel’s conclusion the record fails to show any arguably
meritorious issue that could support the appeal, we affirm the trial court’s judgment.
Appellant was charged by indictment with aggravated robbery with a deadly weapon,
based on events alleged to have occurred in Tarrant County in May 2007. The indictment
also contained a habitual offender notice. After the jury returned a verdict of guilty as
alleged in the indictment, appellant plead true to the habitual offender allegation. The trial
court heard punishment evidence and sentenced appellant to imprisonment for a term of
forty-one years. The trial court certified appellant’s right of appeal and this appeal
followed.
The record reflects that the State presented evidence to show that on May 31, 2007,
Eduardo Avendano was robbed of cash at gunpoint while working at a store. The robbery
was captured by the store’s video system and the recording was admitted at trial without
objection and played before the jury. On that evening, one of two robbers asked Avendano
if he could cash a paycheck from a nearby company. Because the robber mentioned the
company’s name, the investigating police officer showed the company’s general manager
the video recording of the robbery. The manager identified one of the robbers as
appellant, a former employee. Avendano later positively identified appellant as the robber
who pulled out a handgun during the robbery.
Following the presentation of the evidence, the jury found appellant guilty as
charged in the indictment. Appellant went to the trial court for punishment and, as noted,
plead “true” to the habitual offender notice. After receiving appellant’s plea of “true” as well
2
as other evidence, the trial court assessed punishment against appellant at forty-one years
of confinement. Appellant timely appealed.
Thereafter, appellant's appointed appellate counsel has filed a motion to withdraw and
a brief in support pursuant to Anders in which she certifies that she has diligently reviewed
the record and, in her professional opinion, under the controlling authorities and facts of the
case, there is no reversible error or legitimate grounds on which a non-frivolous appeal can
arguably be predicated. The brief discusses in detail the procedural history of this case and
the events at trial. Counsel thoroughly discusses the applicable law and sets forth the
reasons she concludes there are no arguably meritorious appellate issues. Counsel has
certified that a copy of the Anders brief and motion to withdraw have been served on
appellant, and that counsel has advised appellant of his right to review the record and file
a pro se response. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.–Waco 1994, pet.
ref'd). By letter, this Court also notified appellant of his opportunity to submit a response
to the Anders brief and motion to withdraw filed by his counsel. Appellant has not filed a
response.
In conformity with the standards set out by the United States Supreme Court, we will
not rule on the motion to withdraw until we have independently examined the record.
Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.–San Antonio 1997, no pet.). If this Court
determines the appeal has merit, we will remand it to the trial court for appointment of new
counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).
3
Appellate counsel’s brief discusses grounds on which a meritorious argument might
lie on appeal, and considers the application of each ground to this case. Counsel first
addresses potential issues concerning jurisdiction and jury selection. We agree that the
record does not support a contention with regard to either of these issues. Secondly,
counsel considers the legal and factual insufficiency of the evidence to support appellant’s
conviction. After a complete review of the record, however, we agree with appellate counsel
that evidentiary insufficiency grounds do not arguably support an appeal. Counsel next
discusses the jury charges at both guilt-innocence and punishment and concludes there is
no arguable issue for appeal on this point. We agree with counsel’s conclusion.
Counsel then discusses issues pertaining to appellant’s punishment and concludes
there is no arguable such issue on appeal. We agree. The trial court assessed punishment
for appellant at forty-one years of confinement in the Institutional Division of the Texas
Department of Criminal Justice, a term within the permissible range. See Tex. Penal Code
Ann. § 29.03(b) (Vernon 2003). It is the general rule that as long as a sentence is within
the proper range of punishment, it will not be disturbed on appeal. Jackson, 680 S.W.2d
at 814; Rodriguez v. State, 917 S.W.2d 90, 92 (Tex.App.–Amarillo 1996, pet. ref’d) (Texas
courts have traditionally held that as long as the sentence is within the range of punishment
established by the Legislature in a valid statute, it does not violate state or federal
prohibitions).
Lastly, counsel identifies the possibility that appellant might argue he had received
ineffective assistance of counsel at trial. See Strickland v. Washington, 466 U.S. 668, 104
4
S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and Hernandez v. State, 726 S.W.2d 53, 57
(Tex.Crim.App. 1986) (establishing standard for effective assistance of counsel). We agree
with counsel that the record contains no support for such a contention.
Our review convinces us that appellate counsel conducted a complete review of the
record. We have also made an independent examination of the entire record to determine
whether there are any arguable grounds which might support the appeal from appellant’s
conviction and sentence. We agree the record presents no arguably meritorious grounds
for review. Accordingly, we grant counsel's motion to withdraw2 and affirm the judgment
of the trial court.
James T. Campbell
Justice
Do not publish.
2
Counsel shall, within five days after the opinion is handed down, send her 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. Tex. R. App. P. 48.4.
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