Kelvin Dewain Primus v. State
Kelvin Dewain Primus v. State
Opinion
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 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 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DO NOT PUBLISH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
[1]See Tex. R. App. P. 47.4.
[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, 922B23 (Tex. App.CFort Worth 1995, no pet.).
[4]See Penson v. Ohio, 488 U.S. 75, 82B83, 109 S. Ct. 346, 351 (1988).
[5]See Tex. Code Crim. Proc. Ann. art. 42.037(c), (k) (Vernon Supp. 2008); Cartwright v. State, 605 S.W.2d 287, 288B89 (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.CAustin 2008, pet. ref=d); Bray v. State, 179 S.W.3d 725, 729 (Tex. App.CFort 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, 827B28 (Tex. Crim. App. 2005).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.