Tabius D. Kelson v. State

NUMBER 13-01-076-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI __________________________________________________________________ TABIUS DEHUN KELSON, Appellant, v. THE STATE OF TEXAS, Appellee. ___________________________________________________________________ On appeal from the 252nd District Court of Jefferson County, Texas. __________________________________________________________________ O P I N I O N Before Justices Dorsey, Hinojosa, and Rodriguez Opinion by Justice Rodriguez Appellant, Tabius Dehun Kelson, entered a plea of guilty to possession of a controlled substance. See Tex. Health & Safety Code Ann. § 481.115 (Vernon Supp. 2001). The court sentenced appellant to one year in state jail. (1) Appellant filed a pro se notice of appeal. We dismiss for want of jurisdiction. Counsel was appointed to represent appellant on appeal, and filed an Anders brief, in which he concludes the appeal to be frivolous and without merit. Counsel's brief complies with the requirements of Anders v. California, 386 U.S. 738, 744-745 (1967). See High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137, 137-138 (Tex. Crim. App. 1969); Villa v. State, 821 S.W.2d 402, 402 (Tex. App.--Corpus Christi 1991, no pet.). Counsel presented a professional evaluation of the record demonstrating why there are no arguable grounds of error on appeal. Furthermore, counsel certified that he served appellant with a copy of the brief and informed appellant in writing of his right to file a pro se brief. Appellant has not filed any pro se brief. Appellant's notice of appeal does not invoke the jurisdiction of this Court. Rule 25.2 (b)(3) of the Texas Rules of Appellate Procedure provides that following a defendant's plea of guilty or nolo contendere, and where the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant, a notice of appeal must specify that (1) the appeal is for a jurisdictional defect, (2) the substance of the appeal was raised by written motion and ruled on before trial, or (3) state that the trial court granted permission to appeal. See Tex. R. App. P. 25.2 (b)(3). The record does not show that the punishment assessed exceeded the punishment recommended by the prosecutor and agreed to by the defendant. None of the three grounds for jurisdiction have been specified in appellant's notice of appeal. In addition, appellant expressly waived his right of appeal in his plea papers. Thus, we lack jurisdiction to consider this appeal, and dismiss the appeal for want of jurisdiction. In accordance with Anders, counsel has requested permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744. We grant appellant's attorney's motion to withdraw. We order appellant's attorney to notify appellant of the disposition of this appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). NELDA V. RODRIGUEZ Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this 16th day of August, 2001. 1. At this time, the court also adjudicated appellant guilty of a prior offense, possession of a controlled substance, and sentenced appellant to six years in state jail. Appellant filed a pro se notice of appeal, which the court dismissed for want of jurisdiction. See Kelson v. State, No. 13-01-077-CR, (Tex. App. - Corpus Christi [13th Dist.] July 14, 2001, no pet.) (not designated for publication) 2001Tex. App. LEXIS 4027.