Kenneth Hayes v. State

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-14-00177-CR No. 07-14-00178-CR ________________________

KENNETH HAYES, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 140th District Court Lubbock County, Texas Trial Court Nos. 2002-400,482 & 2002-400,483; Honorable Jim Bob Darnell, Presiding

January 8, 2015

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

In July 2013, pursuant to article 64.01(c) of the Texas Code of Criminal Procedure, counsel was appointed to represent Appellant, Kenneth Hayes, to pursue motions for DNA testing of evidence related to his 2004 convictions for aggravated sexual assault of a child. As required by article 64.02(a)(2)(B), the State’s attorney responded with an affidavit explaining that law enforcement did not collect any physical evidence that would contain biological material subject to DNA testing. See Murphy v. *2 State, 111 S.W.3d 846, 848 (Tex. App.—Dallas 2003, no pet.). According to the affidavit, Appellant’s two young victims had made delayed outcries of the sexual assaults and the results of their examinations did not produce biological material to test. Without a hearing, the trial court denied both motions and Appellant prosecuted these appeals. In presenting this appeal, counsel has filed an Anders1 brief in support of a motion to withdraw. We grant counsel’s motion and affirm.

In support of his motion to withdraw, counsel certifies he has conducted a conscientious examination of the record, and in his opinion, the record reflects no potentially plausible basis for reversal of Appellant’s conviction. Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008). Counsel candidly discusses why, under the controlling authorities, the record supports that conclusion. See High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978). Counsel has demonstrated he has complied with the requirements of Anders and In re Schulman by (1) providing a copy of the brief to Appellant, (2) notifying him of his right to review the record and file a pro se response if he desired to do so,2 and (3) informing him of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408.3 By letter, this Court granted Appellant an opportunity to exercise his right to file a response to counsel’s brief, should

1 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). 2 Pursuant to Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014), counsel provided a copy of the appellate record to Appellant. 3 Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary review upon execution of the Trial Court’s Certification of Defendant’s Right of Appeal, counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together with notification of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408 n.22 & 411 n.35. The duty to send the client a copy of the court of appeals’s decision is an informational one, not a representational one. It is ministerial in nature, does not involve legal advice, and exists after the court of appeals has granted counsel’s motion to withdraw. Id. at 411 n.33.

he be so inclined. Id. at 409 n.23. Appellant did not file a response. Neither did the State favor us with a brief.

We have independently examined the entire record to determine whether there are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); In re Schulman, 252 S.W.3d at 409; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We have found no such issues. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). After reviewing the record and counsel’s brief, we agree with counsel that there is no plausible basis for reversal. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).

Accordingly, the trial court’s judgments are affirmed and counsel's motion to withdraw is granted.

Patrick A. Pirtle Justice

Do not publish.