                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-17-00389-CR


JUSTIN CLINTON BURKETT                                              APPELLANT

                                       V.

THE STATE OF TEXAS                                                           STATE

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          FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY
                      TRIAL COURT NO. 10761

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                        MEMORANDUM OPINION1

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      Appellant Justin Clinton Burkett appeals from the trial court’s judgment

revoking his community supervision, adjudicating his guilt, sentencing him to

twenty-five years’ confinement, and assessing a $750 fine. We will affirm.

      A grand jury indicted Burkett for aggravated sexual assault. Pursuant to a

plea-bargain agreement, Burkett pleaded guilty to the lesser-included offense of



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       See Tex. R. App. P. 47.4.
sexual assault, and the trial court deferred its adjudication of his guilt and placed

him on community supervision for seven years. The plea-bargain agreement

included a handwritten admonishment that if Burkett were adjudicated guilty of

sexual assault, he would be subject to the punishment range of a first-degree

felony as noticed in the “State’s Notice To Enhance Punishment”; Burkett initialed

beside the admonishment.

      A month later, the State filed a motion for the trial court to adjudicate

Burkett’s guilt.   The State alleged that Burkett had violated the terms of his

community supervision by failing to abstain from the use and possession of any

narcotic or habit-forming drugs or controlled substances because his April 19,

2017 saliva sample tested positive for amphetamine, methamphetamine, and

benzodiazepines—nordiazepam.        The State later amended its motion to add

additional violations related to the use of narcotics and to add that Burkett had

violated the condition of his community supervision prohibiting a violation of any

law of the State of Texas. Burkett pleaded true to the allegations. After hearing

evidence in a unitary proceeding, the trial court revoked Burkett’s community

supervision, adjudicated his guilt of sexual assault, found the enhancement to be

true, sentenced him to twenty-five years’ confinement, and assessed a $750 fine.

      Burkett’s court-appointed appellate counsel has filed a motion to withdraw

as counsel and a brief in support of that motion. Counsel’s brief and motion meet

the requirements of Anders v. California by presenting a professional evaluation

of the record demonstrating why there are no arguable grounds for relief. See


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386 U.S. 738, 87 S. Ct. 1396 (1967). In compliance with Kelly v. State, counsel

notified Burkett of the motion to withdraw, provided him a copy of the brief,

informed him of his right to file a pro se response, informed him of his pro se right

to seek discretionary review should this court hold that the appeal is frivolous,

and took concrete measures to facilitate Burkett’s review of the appellate record.

436 S.W.3d 313, 319 (Tex. Crim. App. 2014). This court afforded Burkett the

opportunity to file a response on his own behalf, but he did not do so. The State

has not filed a brief.

      As the reviewing court, we must conduct an independent evaluation of the

record to determine whether counsel is correct in determining that the appeal is

frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991);

Mays v. State, 904 S.W.2d 920, 923 (Tex. App.—Fort Worth 1995, no pet.). Only

then may we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S.

75, 82–83, 109 S. Ct. 346, 351 (1988).

      We have carefully reviewed the record and counsel’s brief. We agree with

counsel that this appeal is frivolous and without merit; we find nothing in the

record that might arguably support the appeal.         See Bledsoe v. State, 178

S.W.3d 824, 827–28 (Tex. Crim. App. 2005). Accordingly, we grant counsel’s

motion to withdraw and affirm the trial court’s judgment.


                                                    PER CURIAM

PANEL: WALKER, J.; SUDDERTH, C.J.; and MEIER, J.



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DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 5, 2018




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