Kelvin Dewain Primus v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-013-CR
KELVIN DEWAIN PRIMUS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION 1
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Appellant Kelvin Dewain Primus appeals from a conviction for felony
theft. Upon his plea of guilty, a jury convicted him of the offense and assessed
his punishment at two years’ confinement in the State Jail Division of the Texas
Department of Criminal Justice; the trial court sentenced him accordingly but
also awarded restitution for the stolen property. Appellant’s court-appointed
1
… See Tex. R. App. P. 47.4.
appellate counsel has filed a motion to withdraw as counsel and a brief in
support of that motion. In the brief, counsel avers that, in his professional
opinion, this appeal is frivolous. Counsel’s brief and motion meet the
requirements of Anders v. California 2 by presenting a professional evaluation of
the record demonstrating why there are no arguable grounds for relief.
Although Appellant was given an opportunity to file a pro se brief, he has not
done so.
After an appellant’s court-appointed counsel files a motion to withdraw
on the ground that the appeal is frivolous and fulfills the requirements of
Anders, this court is obligated to undertake an independent examination of the
record.3 Only then may we grant counsel’s motion to withdraw.4
We have carefully reviewed counsel’s brief and the record. The evidence
in the record shows that the retail value of the merchandise Appellant stole was
$237.71, but the record also shows that the complainant, Wal-Mart, recovered
the merchandise before Appellant’s arrest. There is no evidence that the
2
… 386 U.S. 738, 87 S. Ct. 1396 (1967).
3
… See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991);
Mays v. State, 904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no
pet.).
4
… See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351
(1988).
2
property was damaged. Accordingly, the trial court abused its discretion by
awarding restitution.5 We therefore modify the judgment to delete the
restitution award.6
Except for this necessary modification to the judgment, we agree with
counsel that this appeal is wholly frivolous and without merit; we find nothing
else in the record that arguably might support an appeal. 7 Accordingly, we
grant counsel’s motion to withdraw and affirm the trial court’s judgment as
modified.
PER CURIAM
PANEL: DAUPHINOT, J.; CAYCE, C.J.; and MCCOY, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 5, 2009
5
… See Tex. Code Crim. Proc. Ann. art. 42.037(c), (k) (Vernon Supp.
2008); Cartwright v. State, 605 S.W.2d 287, 288–89 (Tex. Crim. App. [Panel
Op.] 1980); see also Martin v. State, 874 S.W.2d 674, 676 (Tex. Crim. App.
1994).
6
… See Ceballos v. State, 246 S.W.3d 369, 373 (Tex. App.—Austin
2008, pet. ref’d); Bray v. State, 179 S.W.3d 725, 729 (Tex. App.—Fort Worth
2005, no pet.) (en banc); see also French v. State, 830 S.W.2d 607, 609 (Tex.
Crim. App. 1992).
7
… See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App.
2005).
3