Court of Civil Appeals of Texas, 2018

Kris Wayne MacKley v. State

Court of Civil Appeals of Texas · Decided January 10, 2018

Opinion

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).

Mackley v. State Page 2 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).

Mackley v. State Page 3 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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