Kelly Mayfield v. State ( 2006 )

NO. 07-05-0360-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 20, 2006 ______________________________

KELLY SHAWN MAYFIELD, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 320^TH DISTRICT COURT OF POTTER COUNTY;

NO. 50,278-D; HONORABLE DON EMERSON, JUDGE _______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant, Kelly Shawn Mayfield, appeals his conviction for unauthorized use of a motor vehicle, twice enhanced by prior felony convictions, and sentence of five years incarceration in the Institutional Division of the Texas Department of Criminal Justice and a fine of $3,000. Appellant's counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and Gainous v. State, 436 S.W.2d 137, 138 (Tex.Crim.App. 1969). We affirm.

Appellant was indicted for unauthorized use of a motor vehicle enhanced by two prior felony convictions. A jury subsequently found appellant guilty of unauthorized use of a motor vehicle. Appellant entered pleas of true to the enhancement paragraphs of the indictment and the jury sentenced appellant to five years confinement and a fine of $3,000.

Appellant's counsel has filed a brief, in compliance with Anders and Gainous, stating that he has diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error upon which an appeal can arguably be predicated. Counsel thus concludes that the appeal is frivolous. Counsel's brief presents a chronological summation of the procedural history of the case and discusses why, under the controlling authorities, there is no reversible error in the trial court proceedings and judgment. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978).

Counsel has attached an exhibit showing that a copy of the Anders brief has been forwarded to appellant and that counsel has appropriately advised appellant of his right to review the record and file a pro se response to counsel's motion and brief. The clerk of this court has also advised appellant by letter of his right to file a response to counsel's brief. Appellant has not filed a response.

We have made an independent examination of the record to determine whether there are any non-frivolous grounds upon which an appeal could arguably be founded. See Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such grounds.

Appellant's counsel has moved for leave to withdraw. See Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.-Waco 1994, writ ref'd). We carried the motion for consideration with the merits of the appeal. Having done so and finding no reversible error, appellant's counsel's motion to withdraw is granted and the trial court's judgment is affirmed.

Mackey K. Hancock

Justice

Do not publish.

32 S.W.2d 725, 728 (Tex.App.--Amarillo1996, writ denied) (holding that in performing its ministerial function to dismiss the action upon a motion for non-suit, the trial court does not adjudicate the merits of the case).

Under Rule 162 the Department was authorized to take a non-suit at any time before it had presented all of its evidence. In Rexrode v. Bazar, 937 S.W.2d 614, 619 (Tex.App.--Amarillo 1997, no writ), we observed that Rule 162 was designed to allow a plaintiff to avoid unexpected events or occurrences shortly before or during trial without proceeding to trial on the merits and suffer an unfavorable judgment. Recently, we held that after a non-suit the Department could file a second suit for termination. See In re L.J.S., 96 S.W.3d 692, 694 (Tex.App.--Amarillo 2003, pet. denied). In his concurrence, Chief Justice Johnson noted that section 263.401 does not require new facts be alleged in a subsequent proceeding. Id. at 696.

Applying section 263.401, we have held that a Rule 11 agreement in an initial proceeding would not support judgment beyond the mandatory dismissal date in a second suit. See In re T.M., 33 S.W.3d 341, 345 (Tex.App.--Amarillo 2000, no pet.). We also held that the Legislature did not provide for any judicial discretion but imposed a duty on the trial court to dismiss the proceeding. See In re L.L., 65 S.W.3d 194, 197 (Tex.App.--Amarillo 2001, pet. dism'd). However, because neither sections 263.401 nor 263.402 prohibit a second suit by the Department following a non-suit without prejudice, nor contain a provision abrogating Rule 162 for purposes of those sections, we hold the trial court did not have a statutory duty to dismiss the 2003 proceeding.

We have not overlooked the question of the trial court's jurisdiction implied by the Baldwins' attorney in the trial court. However, because the 2001 amendment to section 263.401(b) ⁽³⁾ removed the reference to the trial court's jurisdiction and the Baldwins did not present argument, it is not presented for review. The Baldwins' sole issue is overruled.

Our disposition of the Baldwins' issue pretermits consideration of the Department's contentions. Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Campbell, J., concurring.

NO. 07-04-00267-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 13, 2005

______________________________

IN THE INTEREST OF L.W.B., II, A CHILD _________________________________

FROM THE 72^ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2003-520,737; HONORABLE KEVIN C. HART, JUDGE _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

CONCURRING OPINION

I concur with the result reached by the majority. In my view, though, when the Department of Family and Protective Services seeks termination of the parent-child relationship, it may not take a nonsuit without the approval of the trial court. Tex. Fam. Code Ann. § 161.203 (Vernon 2002). Here, as the court's opinion notes, the trial court signed an order dismissing cause number 2001-514,702 without prejudice in response to the notice of nonsuit filed by the Department.

James T. Campbell

Justice

1. Counsel renewed his objection to the trial court's jurisdiction that had been raised at the original adversary hearing.

2. Although the summary of argument references the 2001 case, the context of the issue applies to the 2003 case.

3. Prior to the 2001 amendment, sub-paragraph (b) provided in part:

[o]n or before the time described by Subsection (a) for the dismissal of the suit, the court may extend the court's jurisdiction of the suit . . . . See Act of May 31, 1977, 75th Leg., R.S., ch. 1022, § 90, 1997 Tex. Gen. Laws 3733, 3769.