Lincoln Wade Kilsby v. State

NUMBER 13-17-00669-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
LINCOLN WADE KILSBY, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court
of San Patricio County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Contreras
After a jury trial, appellant Lincoln Wade Kilsby was found guilty of murder, a first-
degree felony. See TEX. PENAL CODE ANN. § 19.02 (West, Westlaw through 2017 1st
C.S.). The jury assessed appellant’s punishment at eighty-four years’ confinement in the
Institutional Division of the Texas Department of Criminal Justice. Appellant appealed,
and his court-appointed appellate counsel has filed an Anders brief stating there are no
arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). We
affirm.
I. ANDERS BRIEF
Appellant’s appellate counsel has filed a motion to withdraw and a brief in support
thereof in which he states that he has diligently reviewed the entire record and has found
no non-frivolous grounds for appeal. See id.; High v. State, 573 S.W.2d 807, 813 (Tex.
Crim. App. [Panel Op.] 1978). Counsel’s brief meets the requirements of Anders as it
presents a thorough, professional evaluation of the record showing why there are no
arguable grounds for advancing an appeal. See In re Schulman, 252 S.W.3d 403, 407
n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“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).
In compliance with High v. State, 573 S.W.2d at 813, and Kelly v. State, 436
S.W.3d 313, 319–20 (Tex. Crim. App. 2014), counsel carefully discussed why, under
controlling authority, there is no reversible error in the trial court’s judgments. Appellant’s
counsel has also informed this Court that he has: (1) notified appellant that he has filed
an Anders brief and a motion to withdraw; (2) provided appellant with copies of both
filings; (3) informed appellant of his rights to file a pro se response,1 to review the record
The Texas Court of Criminal Appeals has held that “the pro se response need not comply with
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the rules of appellate procedure in order to be considered. Rather, the response should identify for the
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preparatory to filing that response, and to seek discretionary review in the Texas Court of
Criminal Appeals if this Court finds that the appeal is frivolous; and (4) provided appellant
with a form motion for pro se access to the appellate record with instructions to file the
motion in this Court. See Anders, 386, U.S. at 744; Kelly, 436 S.W.3d at 319–20; see
also In re Schulman, 252 S.W.3d at 609 n.23. More than adequate time has passed, and
appellant has not filed a pro se response.
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 (1988). We have reviewed the record and counsel’s brief, and we have found no
reversible error. 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 appeals met the requirement of Texas Rule of Appellant Procedure 47.1.”);
Stafford, 813 S.W.2d at 509.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s counsel has asked this Court for
permission to withdraw. See Anders, 386 U.S. at 744; see also In re Schulman, 252
S.W.3d at 408 n.17 (citing Jeffrey v. State, 903 S.W.3d 776, 779–80 (Tex. App.—Dallas
1995, no pet.) (“[I]f an attorney believes the appeal is frivolous, he must withdraw from
representing the appellant. To withdraw from representation, the appointed attorney must
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).
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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 opinion, we order counsel to send a copy of this
opinion and judgment to appellant and to advise him of his right to file any petition for
discretionary review.2 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, 67 (Tex. Crim. App. 2006).
IV. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
31st day of August, 2018.
2 No substitute counsel will be appointed. If appellant seeks further review by the Texas Court of
Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se
petition for discretionary review. Any petition for discretionary review must be filed within thirty days from
the date of either this opinion or the last timely motion for rehearing or timely motion for en banc
reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. A petition for discretionary
review must be filed with the clerk of the Court of Criminal Appeals, see id. R. 68.3(a), and must comply
with the requirements of the Texas Rule of Appellate Procedure. See id. R. 68.4.
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