                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-013-CR


KELVIN DEWAIN PRIMUS                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

                                    ------------

            FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      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




      1
          … See Tex. R. App. P. 47.4.
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



      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, 922–23 (Tex. App.—Fort Worth 1995, no
pet.).
      4
      … See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351
(1988).

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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




      5
      … See Tex. Code Crim. Proc. Ann. art. 42.037(c), (k) (Vernon Supp.
2008); Cartwright v. State, 605 S.W.2d 287, 288–89 (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.—Austin
2008, pet. ref’d); Bray v. State, 179 S.W.3d 725, 729 (Tex. App.—Fort 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, 827–28 (Tex. Crim. App.
2005).

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