                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00143-CR

JIMMY LEE KENNER,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 54th District Court
                           McLennan County, Texas
                           Trial Court No. 1991-120-C


                          MEMORANDUM OPINION

      In 1991, appellant, Jimmy Lee Kenner, was convicted of burglary of a motor

vehicle. Because appellant was a habitual-felony offender, the jury sentenced appellant

to a prison term of ninety-nine years. This Court affirmed appellant’s conviction on

May 20, 1992, and the Texas Court of Criminal Appeals refused appellant’s petition for

discretionary review on September 23, 1992.

      Subsequently, on April 30, 2012, appellant filed a pro se motion for DNA testing

of “fingerprints lifted off the car,” among other things. The trial court appointed an
attorney to handle appellant’s DNA motion. Thereafter, on March 7, 2013, appellant’s

counsel filed another DNA motion, alleging identity was an issue and requesting the

testing of any biological material relating to any fingerprint dusting of evidence

collected. The State responded that appellant did not establish that the requested DNA

evidence would exculpate him and that there is no evidence remaining in this case to be

tested.

          Without a hearing, the trial court denied appellant’s DNA motions. Appellant

appeals, and we affirm.1

                                           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).


         Appellant’s brief was filed on December 27, 2013. Because appellant’s brief has been filed, we
          1

dismiss appellant’s “Motion for Reconsideration” and “Motion for Extension of Time to File Brief” as
moot.

Kenner 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; and (3) informed appellant of his right to review the record and

to file a pro se response.2 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.3 See In re

Schulman, 252 S.W.3d at 409.

                                        II.     INDEPENDENT REVIEW

        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

        2 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.)).

        3On February 5, 2014, we granted appellant’s pro se motion for extension of time to file his pro se
response. Accordingly, appellant’s pro se response was due on March 24, 2014. To date, we have not
received a pro se response from appellant.

Kenner v. State                                                                                     Page 3
appeals met the requirement of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813

S.W.2d at 509. Accordingly, the judgment of the trial court is affirmed.

                                       III.     MOTION TO WITHDRAW

        In accordance with Anders, appellant’s attorney has asked this Court for

permission to withdraw as counsel for appellant. 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 advise him of his right to file a petition for discretionary review.4 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

        4 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.

Kenner v. State                                                                                       Page 4
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed April 3, 2014
Do not publish
[CRPM]




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