Kris Wayne MacKley v. State

IN THE
TENTH COURT OF APPEALS
No. 10-17-00103-CR
KRIS WAYNE MACKLEY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2016-990-C2
MEMORANDUM OPINION
Appellant, Kris Wayne Mackley, was charged by indictment with aggravated
assault against a public servant. See TEX. PENAL CODE ANN. § 22.02(a)(1), (b)(2)(B) (West
2011). The indictment alleged that appellant struck McLennan County Jail Corrections
Officer Royce Henley and caused serious bodily injury while Officer Henley was
escorting appellant back to his jail cell. Later, the State filed a notice of its intent to use
appellant’s prior conviction in Jackson County, Missouri, for “Attempt to Manufacture
Controlled Substance” for purposes of enhancement.
This case was tried to a jury, and the jury ultimately found appellant guilty of the
charged offense. Appellant pleaded “true” to the enhancement, and the jury assessed
punishment at forty-eight years’ incarceration in the Institutional Division of the Texas
Department of Criminal Justice. The trial court certified appellant’s right of appeal, and
this appeal followed.
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).
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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; (3)
provided appellant with a “Motion for Pro Se Access to the Appellate Record,” lacking
only appellant’s signature and the date, and the mailing address for this Court; and (4)
informed him of his right to file a pro se response.1 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.2
See In re Schulman, 252 S.W.3d at 409.
II. INDEPENDENT REVIEW
1 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.)).
2 Here, appellate counsel provided appellant with a Motion for Pro Se Access to the Appellate
Record. Appellant signed this motion and filed it in this Court. In response, we ordered appellate counsel
to obtain and send appellant copies of the Clerk’s and Reporter’s Records and to simultaneously notify this
Court, the State, the trial court, and the trial court clerk when this task was completed. Appellate counsel
notified this Court, on October 4, 2017, that he provided copies of the record to appellant. On November
9, 2017, appellant filed a pro se motion for extension of time to file his pro se response. In this motion,
appellant asked for thirty additional days to file his pro se response. We granted appellant’s motion;
however, the deadline has passed, and he has yet to file his pro se response. In any event, based on the
foregoing, we have fair assurance that appellant has had a sufficient opportunity to review the record to
assist in filing a pro se response, though no pro se response has been filed. See Kelly v. State, 436 S.W.3d
313, 321-22 (Tex. Crim. App. 2014).
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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 appeals met the
requirement of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509.
Accordingly, we affirm the judgment of the trial court.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s attorney has asked this Court for
permission to withdraw as counsel in this case. 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
Mackley v. State Page 4
advise him of his right to file a petition for discretionary review.3 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
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed January 10, 2018
Do not publish
[CR25]
3 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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