Marcus Jenkins v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00395-CR
MARCUS JENKINS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Marcus D. Jenkins appeals the revocation of his felony deferred
adjudication community supervision, his conviction for the offense of continuous
violence against the family, and his sentence of five years’ confinement. We
affirm.
1
See Tex. R. App. P. 47.4.
On June 14, 2011, Appellant pleaded guilty to the underlying offense of
assault bodily injury (continuous violence against the family). See Tex. Pen.
Code Ann. § 25.11 (West 2011). Under the terms of his plea deal, Appellant
received two years’ deferred adjudication community supervision. On October
28, 2011, the State filed its petition to proceed to adjudication. In its first
amended petition, filed on August 10, 2012, the State alleged that Appellant
failed to report for the months of July to December 2011 and January to July
2012; failed to pay the supervision fee for July to December 2011 and January to
July 2012; failed to pay the Crime Stoppers fee within thirty days from the date of
his community supervision; failed to report directly to the District Clerk’s office to
make payment arrangements; and, on August 5, 2012, gave a false or fictitious
name to a peace officer who had lawfully arrested or detained him. Appellant
pleaded true to violating the terms and conditions of his deferred adjudication
community supervision.
At the hearing, Appellant testified that he did not make payment
arrangements because he forgot, and he never returned to set up a payment
plan because he was scared. Appellant testified that he has six children and
three more on the way and is unemployed. He denied having a drug problem,
but occasionally smoked marijuana “to calm [himself] down” because he has an
“anger problem.” Appellant stated that he lived with his mother but had not lived
there long because he would get in trouble for “not wanting to follow the rules
and do what [he] wanted to do.”
2
Appellant’s court-appointed appellate counsel has filed a motion to
withdraw as counsel, accompanied by a brief in support of that motion. In the
brief, counsel states that in his professional opinion, this appeal is frivolous and
without merit. Counsel’s brief and motion meet the requirements of Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting a professional
evaluation of the record demonstrating why there are no arguable grounds for
relief. Appellant had the opportunity to file a pro se brief but did not do so. The
State has not filed a brief.
Once an appellant’s court-appointed attorney files a motion to withdraw on
the grounds that an appeal is frivolous and fulfills the requirements of Anders, we
have a supervisory obligation to undertake an examination of the proceedings.
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.). Only
after our independent review is complete 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
appellate counsel that this appeal is wholly 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); see also Meza v. State,
206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006). Accordingly, we grant
counsel’s motion to withdraw and affirm the trial court’s judgment. See Tex. R.
App. P. 43.2(a).
3
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 1, 2013
4