                                       NO. 12-16-00058-CR

                              IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS

KENNETH L. GILLILAND,                                   §      APPEAL FROM THE 7TH
APPELLANT

V.                                                      §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                §      SMITH COUNTY, TEXAS

                                       MEMORANDUM OPINION
        Kenneth L. Gilliland appeals his conviction for driving while intoxicated. Appellant
raises four issues on appeal. We affirm.
        Appellant’s counsel filed an Anders brief and motion to withdraw as counsel. Appellant
thereafter filed a pro se brief. On August 10, 2016, we issued an opinion granting counsel’s
motion to withdraw and affirmed the trial court’s judgment. See Gilliland v. State, No. 12-16-
00058-CR, 2016 WL 4208135, at *1 (Tex. App.—Tyler Aug. 10, 2016, no pet.) (per curiam)
(mem. op., not designated for publication). On August 31, 2016, Appellant filed a motion for
rehearing, asserting that he did not have sufficient access to the record prior to submitting his
initial brief. He moved that we permit him to withdraw his brief and requested that we order the
trial court to provide him access to the record. On September 29, 2016, we granted the motion.
The trial court subsequently filed a letter in this court certifying that it provided Appellant access
to the record on October 27, 2016. Appellant subsequently filed two motions seeking extensions
to the briefing deadline, which we granted. On January 30, 2017, Appellant filed a pro se brief
that mirrors his prior brief.
        Appellant was indicted for the offense of driving while intoxicated (DWI), a third degree
felony as alleged due to prior DWI convictions.1 Moreover, the indictment alleged that

        1
            See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West Supp. 2017).
Appellant had two prior felony convictions, thereby invoking the habitual offender statute, which
mandates a sentence of imprisonment ranging from twenty-five to ninety-nine years or life.2 The
State offered Appellant forty-five years of imprisonment in exchange for his guilty plea, which
he rejected. Nevertheless, Appellant later made an open plea of “guilty” to the offense, and also
pleaded “true” to the enhancements. After a hearing, the trial court accepted Appellant’s plea
and found him guilty of the offense. After a punishment hearing, the trial court found that the
enhancements were true and sentenced Appellant to forty years of imprisonment.
         Appellant contends in his pro se brief that the indictment is fundamentally defective, he
received ineffective assistance of counsel at trial and on appeal, and the trial court abused its
discretion under the Sixth Amendment when it allowed appellate counsel to file an Anders brief
containing false assertions of fact.
         As we stated in our August 10, 2016 opinion, we considered counsel’s brief, Appellant’s
earlier pro se brief, and conducted our own independent review of the appellate record. See id.
We found no reversible error. See id. (citing Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex.
Crim. App. 2005)). Appellant’s latest brief is a facsimile of his prior brief.
         Therefore, Appellant’s four issues are overruled.3


                                                   CONCLUSION
         After conducting an independent examination of the record, we find no reversible error
and conclude that the appeal is wholly frivolous. See Bledsoe, 178 S.W.3d at 826–27.
Accordingly, we affirm the judgment of the trial court.
         After we issued our August 10, 2016 opinion, Appellant’s former counsel discharged his
duty to timely send a copy of the opinion and judgment to Appellant, and advised him of his
right to file a petition for discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 252
S.W.3d 403, 411 n.35 (Tex. Crim. App. 2008). As a result of our prior opinion and order
granting counsel’s motion to withdraw, Appellant is now pro se.
         Should Appellant wish to seek review of this case by the Texas Court of Criminal
Appeals, he must either retain an attorney to file a petition for discretionary review on his behalf

         2
             See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2017).
         3
           Nothing in this opinion is intended to modify, supplant, or replace our August 10, 2016 opinion, which
shall remain in full effect. This opinion addresses only Appellant’s latest pro se brief that he filed after he reviewed
the record.


                                                           2
or he must file a petition for discretionary review pro se. Any petition for discretionary review
must be filed within thirty days from the date of this court’s judgment or the date the last timely
motion for rehearing was overruled by this court. See TEX. R. APP. P. 68.2. Any petition for
discretionary review must be filed with the Texas Court of Criminal Appeals. See TEX. R. APP.
P. 68.3(a). Any petition for discretionary review should comply with the requirements of Texas
Rule of Appellate Procedure 68.4. See In re Schulman, 252 S.W.3d at 408 n.22.

                                                                GREG NEELEY
                                                                   Justice



Opinion delivered December 21, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




                                                          3
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         DECEMBER 21, 2017


                                         NO. 12-16-00058-CR


                                    KENNETH L. GILLILAND,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                  Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 007-1219-15)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
