Frank Damason Kelly v. State of Texas ( 2012 )

Opinion filed June 14, 2012

                                                                       In The

  Eleventh Court of Appeals

                                                                   __________

                                                         No. 11-12-00066-CR

                                                    __________

                             FRANK DAMASON KELLY, Appellant

                                                             V.

                                      STATE OF TEXAS, Appellee

                                   On Appeal from the 358th District Court

                                                             Ector County, Texas

                                                   Trial Court Cause No. D-36,530

M E M O R A N D U M    O P I N I O N

Frank Damason Kelly pleaded guilty in October 2009 to robbery.  The trial court deferred a finding of guilt and placed him on deferred adjudication community supervision for a term of eight years.  In October 2011, the State filed a motion to proceed with an adjudication of guilt, alleging multiple violations of the terms and conditions of community supervision including allegations that appellant had used marihuana on six occasions while on probation.  The trial court heard the motion to proceed on January 17, 2012.  Appellant admitted to the alleged violations during the hearing.  The trial court found the alleged violations to be true, adjudicated appellant guilty of the charged offense, and assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of eight 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 states that he has concluded that the appeal is frivolous.  Counsel has provided appellant with a copy of the brief and advised appellant of his right to review the record and file a response to counsel’s brief.  A response has not been filed.[1] Court-appointed counsel has complied with the requirements of Anders v. California, 386 U.S. 738 (1967); 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.).  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 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

June 14, 2012

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Kalenak, J.

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                [1]By letter, this court granted appellant thirty days in which to exercise his right to file a response to counsel’s brief.