NO. 12-12-00179-CR

 

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

SHANE RYAN KIRKLAND, § APPEALS FROM THE 114TH

APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,

APPELLEE § SMITH COUNTY, TEXAS

 

MEMORANDUM OPINION

PER CURIAM

Shane Ryan Kirkland appeals his conviction for aggravated robbery. Appellant’s counsel 

filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d 

493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm.

BACKGROUND

Appellant was charged by indictment with the offense of aggravated robbery, a first degree 

felony.1 The indictment also alleged that Appellant used or exhibited a deadly weapon during the 

commission of or immediate flight from the offense. Appellant entered an “open” plea of guilty 

to the offense charged in the indictment. Appellant and his counsel signed various documents in 

connection with his guilty plea, including a stipulation of evidence in which Appellant swore, and 

judicially confessed, that all allegations pleaded in the indictment were true and correct. The trial 

court accepted Appellant’s plea, found that the evidence was sufficient to support a finding of 

Appellant’s guilt, deferred further proceedings without entering an adjudication of guilt, and 

 

1

See TEX. PENAL CODE ANN. § 29.03 (a), (b) (West 2011). 
2

ordered that Appellant be placed on deferred adjudication community supervision for ten years.2 

The trial court also ordered that Appellant pay court costs.

Later, the State filed an application to proceed to final adjudication, alleging in thirteen 

paragraphs that Appellant had violated the terms of his community supervision. Appellant and 

his attorney signed a written plea admonishment and stipulation of evidence, admitting as “true” 

nine paragraphs of allegations in the State’s application. At the hearing on the application, the 

State abandoned three paragraphs of the allegations in its application. Appellant pleaded “true” to 

nine paragraphs of the allegations contained in the State’s application. However, he pleaded “not 

true” to paragraph nine. After a hearing, the trial court found it “true” that Appellant violated the 

conditions of his community supervision, granted the State’s application, made an affirmative 

deadly weapon finding, and adjudged Appellant guilty as charged in the indictment. The trial 

court assessed Appellant’s punishment at life imprisonment and court costs. 3 This appeal 

followed.

ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA

Appellant’s counsel 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 and that there is no error upon which an appeal can be predicated. From our 

review of Appellant’s brief, it is apparent that his counsel is well acquainted with the facts in this 

case. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807, 812 (Tex. Crim. 

App. 1978), counsel’s brief presents a chronological summation of the procedural history of the 

case, and further states that counsel is unable to raise any arguable issues for appeal. We have 

reviewed the record for reversible error and have found none.4See Bledsoe v. State, 178 S.W.3d 

824, 826-27 (Tex. Crim. App. 2005).

 

2

See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (West Supp. 2012). 

3 An individual adjudged guilty of a first degree felony shall be punished by imprisonment for life or for any 

term of not more than ninety-nine years or less than five years and, in addition, a fine not to exceed $10,000. TEX.

PENAL CODE ANN. § 12.32 (West 2011).

4 Counsel for Appellant certified that he provided Appellant with a copy of his brief and informed Appellant 

that he had the right to file his own brief. Appellant was given time to file his own brief, but the time for filing such a 

brief has expired and we have received no pro se brief.
3

CONCLUSION

As required, Appellant’s counsel has moved for leave to withdraw. See In re Schulman, 

252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 

503, 511 (Tex. Crim. App. 1991). We are in agreement with Appellant’s counsel that the appeal 

is wholly frivolous. Accordingly, his motion for leave to withdraw is hereby granted, and the 

trial court’s judgment is affirmed. See TEX. R. APP. P. 43.2.

Counsel has a duty to, within five days of the date of this opinion, send a copy of the 

opinion and judgment to Appellant and advise him of his right to file a petition for discretionary 

review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. Should Appellant 

wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either 

retain an attorney to file a petition for discretionary review or he must file a pro se petition for 

discretionary review. See In re Schulman, 252 S.W.3d at 408 n.22. Any petition for 

discretionary review must be filed within thirty days from the date of either this opinion or the last 

timely motion for rehearing that was overruled by this court. See TEX. R. APP. P. 68.2. Any 

petition for discretionary review must be filed with the Texas Court of Criminal Appeals. See 

TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements 

of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4; In re 

Schulman, 252 S.W.3d at 408 n.22.

Opinion delivered April 3, 2013.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)
4

COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

APRIL 3, 2013

NO. 12-12-00179-CR

SHANE RYAN KIRKLAND,

Appellant

V.

THE STATE OF TEXAS,

Appellee

 

 Appeal from the 114th Judicial District Court

 of Smith County, Texas. (Tr.Ct.No. 114-1398-09)

 

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that Appellant’s 

counsel’s motion to withdraw is granted, the judgment of the court below be in all things 

affirmed, and that this decision be certified to the court below for observance.

By per curiam opinion.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.