Kenneth James York, Appellant v. The State of Texas, State (2016)

MEMORANDUM OPINION 1

Appellant Kenneth James York appeals his conviction for possessing and intending to deliver between one and four grams of methamphetamine.²  We affirm.

A grand jury indicted appellant for possessing and intending to deliver between one and four grams of methamphetamine.  He pled guilty while receiving admonishments about the effects of doing so, waiving constitutional and statutory rights, and judicially confessing to the offense.  Under the terms of a plea bargain, the trial court deferred its adjudication of appellant's guilt and placed him on community supervision for a ten-year period.  The court ordered him to comply with several conditions related to his community supervision.

A few months later, the State filed a motion in which it asked the trial court to adjudicate appellant's guilt.  The State alleged that he had violated a condition of his community supervision by failing to comply with “all rules, regulations[,] and treatment programs while in [a] Substance Abuse Felony Punishment Facility.” ³

Appellant pled true to violating this condition.  The trial court held a hearing on the State's motion to adjudicate appellant's guilt, found that he had violated this condition of his community supervision, adjudicated his guilt for possessing while intending to deliver between one and four grams of methamphetamine, and sentenced him to twenty years' confinement.  Through appointed counsel, appellant brought this appeal.

Appellant's appointed appellate counsel has filed a motion to withdraw and a brief under Anders v. California, representing that there is nothing in the record that might arguably support this appeal.  386 U.S. 738, 744–45, 87 S.Ct. 1396, 1400 (1967).  Counsel's brief and motion meet the requirements of Anders by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds for relief.  See id.;  In re Schulman, 252 S.W.3d 403, 406–12 (Tex.Crim.App.2008) (orig.proceeding) (analyzing the effect of Anders ).  We gave appellant an opportunity to file a pro se response to counsel's brief, but he did not do so.  The State has not filed a brief.

Once an appellant's court-appointed attorney files a motion to withdraw on the ground that an appeal is frivolous and fulfills the requirements of Anders, we must independently examine the record.  See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).  Only then may we grant counsel's motion to withdraw.  See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S.Ct. 346, 351 (1988).

We have carefully reviewed the record (including a sealed presentence investigation report) and counsel's brief.  We agree with counsel that this appeal is frivolous and without merit;  we find nothing in the record that might arguably support the appeal.  See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex.Crim.App.2005);  see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex.Crim.App.2006).  Accordingly, we grant counsel's motion to withdraw and affirm the trial court's judgment.

FOOTNOTES

1.   See Tex.R.App. P. 47.4.

2.   See Tex. Health & Safety Code Ann. § 481.112(a), (c) (West 2010).

3.   The record establishes that appellant exhibited poor behavior at this facility and was unsuccessfully discharged.

PER CURIAM