Jimmy Lee Kenner v. State ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00143-CR
JIMMY LEE KENNER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 1991-120-C
MEMORANDUM OPINION
In 1991, appellant, Jimmy Lee Kenner, was convicted of burglary of a motor
vehicle. Because appellant was a habitual-felony offender, the jury sentenced appellant
to a prison term of ninety-nine years. This Court affirmed appellant’s conviction on
May 20, 1992, and the Texas Court of Criminal Appeals refused appellant’s petition for
discretionary review on September 23, 1992.
Subsequently, on April 30, 2012, appellant filed a pro se motion for DNA testing
of “fingerprints lifted off the car,” among other things. The trial court appointed an
attorney to handle appellant’s DNA motion. Thereafter, on March 7, 2013, appellant’s
counsel filed another DNA motion, alleging identity was an issue and requesting the
testing of any biological material relating to any fingerprint dusting of evidence
collected. The State responded that appellant did not establish that the requested DNA
evidence would exculpate him and that there is no evidence remaining in this case to be
tested.
Without a hearing, the trial court denied appellant’s DNA motions. Appellant
appeals, and we affirm.1
I. ANDERS BRIEF
Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d
493 (1967), appellant’s court-appointed appellate counsel filed a brief and a motion to
withdraw with this Court, stating that his review of the record yielded no grounds of
error upon which an appeal can be predicated. Counsel’s brief meets the requirements
of Anders as it presents a professional evaluation demonstrating why there are no
arguable grounds to advance on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9
(Tex. Crim. App. 2008) (“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).
Appellant’s brief was filed on December 27, 2013. Because appellant’s brief has been filed, we
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dismiss appellant’s “Motion for Reconsideration” and “Motion for Extension of Time to File Brief” as
moot.
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In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978), appellant’s counsel has carefully discussed why, under controlling
authority, there are no reversible errors in the trial court’s judgment. Counsel has
informed this Court that he has: (1) examined the record and found no arguable
grounds to advance on appeal; (2) served a copy of the brief and counsel’s motion to
withdraw on appellant; and (3) informed appellant of his right to review the record and
to file a pro se response.2 See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Stafford, 813
S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. More than an adequate
period of time has passed, and appellant has not filed a pro se response.3 See In re
Schulman, 252 S.W.3d at 409.
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, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988). We have reviewed the entire
record and counsel’s brief and have found nothing that would arguably support an
appeal. 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
2 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
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) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)).
3On February 5, 2014, we granted appellant’s pro se motion for extension of time to file his pro se
response. Accordingly, appellant’s pro se response was due on March 24, 2014. To date, we have not
received a pro se response from appellant.
Kenner v. State Page 3
appeals met the requirement of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813
S.W.2d at 509. Accordingly, the judgment of the trial court is affirmed.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s attorney has asked this Court for
permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744, 87 S. Ct. at
1400; see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776,
779-80 (Tex. App.—Dallas 1995, no pet.) (“If an attorney believes the appeal is frivolous,
he must withdraw from representing the appellant. To withdraw from representation,
the appointed attorney must 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 Court’s opinion,
counsel is ordered to send a copy of this opinion and this Court’s judgment to appellant
and to advise him of his right to file a petition for discretionary review.4 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,
673 (Tex. Crim. App. 2006).
AL SCOGGINS
Justice
4 No substitute counsel will be appointed. Should appellant wish to seek further review of this
case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for
discretionary review or must file a pro se petition for discretionary review. Any petition for discretionary
review must be filed within thirty days from the date of this opinion or the last timely motion for
rehearing or timely motion for en banc reconsideration was overruled by this Court. See TEX. R. APP. P.
68.2. Any petition and all copies of the petition for discretionary review must be filed with the Clerk of
the Court of Criminal Appeals. See id. at R. 68.3. Any petition for discretionary review should comply
with the requirements of rule 68.4 of the Texas Rules of Appellate Procedure. See id. at R. 68.4; see also In
re Schulman, 252 S.W.3d at 409 n.22.
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Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed April 3, 2014
Do not publish
[CRPM]
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