## NO. 12

- 19

- 00138

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

KELSI LOGAN NEELEY, APPELLANT

V.
THE STATE OF TEXAS, APPELLEE §

§

§ APPEAL FROM THE 114T H

JUDICIAL DISTRICT CO URT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION PER CURIAM Kelsi Logan Neeley appeals her conviction for abandonment or child endangerment

— criminal negligence. 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). Appellant filed a pro se response. We affirm.

B ACKGROUND Appellant was charged by information with the offense of abandonment or child endangerment by intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engaging in conduct that placed a child in imminent danger of death, bodily injury, or physical or mental impairment, by using and consuming methamphetamine in the presence of a child, and not vo luntarily delivering the child to a designated emergency infant care provide r , a state jail felony. 1 Appellant pleaded “guilty” to the charged offense. Appellant and her counsel signed various documents in connection with her guilty plea, including an agr eed punishment

1 T EX

. P ENAL C ODE A NN

. § 22.041 (c), (c

- 1)(1), (f) (West 201 9 ).2 recommendation and a stipulation of evidence in which Appellant stipulated, and judicially confessed, that each and every allegation contained in the information was true and correct. At the plea and sentencing hearing, Appellant stated she took ecstasy that, she said, was unknowingly laced with methamphetamine. Nor did she realize it would enter her child’s system. The trial court accepted Appellant’s plea, found the evidence sufficient to substantiate Appellant’s guilty plea, deferred fu rther proceedings without entering an adjudication of guilt, and ordered that Appellant be placed on deferred adjudication community supervision for three years. Later, the State filed a motion to adjudicate guilt, alleging that Appellant violated the ter ms of her community supervision including failing to (1) notify her supervision officer that she lost her employment at Whataburger within three days of that change; (2) remain in The Beginning intensive outpatient alcohol/drug treatment program as directe d by the Department of Family and Protective Services; (3) attend Course I two times weekly as part of the General Education Diploma (GED) class requirements; and (4) report daily on January 23

- 25, 2019. At the hearing on the State’s motion to revoke, Appe llant pleaded “true” to three of the allegations contained in the State’s motion. She pleaded “not true” to the allegation that she failed to remain in The Beginning intensive outpatient alcohol/drug treatment program as directed by the Department of Fami ly and Protective Services (the Department). Ophelia Ramirez, an employee with the Smith County Community Supervision Corrections Department, testified that she was Appellant’s community supervision officer beginning October 2018. According to Ramirez, Ap pellant was ordered to obtain her GED. She completed her intake with the Literacy Council of Tyler and was required to attend laboratory hours two times per week to be scheduled at Appellant’s convenience. Ramirez stated that Appellant completed only one and one half hours from December 2018 until the date of the hearing, March 7, 2019. However, she admitted that Appellant was not technically in violation of this term until after April 2019. Appellant was also ordered to remain in The Beginning intensive outpatient alcohol/drug treatment program as directed by the Department as incorporated in her community supervision
order. Ramirez stated that Appellant was accepted into the program in December 2018, an d was required to attend three times per week. Appellant was only allowed to miss three sessions during the ninety day program. According to Ramirez, Appellant reported that she was attending regularly and only missed one session because of an emergency with her child. However, after an office visit with Appellant in January 2019, Ramirez was informed by Appellant’s caseworker at3 The Beginnings that she missed six group meetings and one individual counseling session. The caseworker stated that if Appella nt missed another meeting, she would be unsuccessfully discharged. Appellant was subsequently unsuccessfully discharged from The Beginnings program
for excessive absences. Although Appellant was hired at Whataburger, Ramirez stated that she never began

e mployment. On January 4, 2019, Appellant told her that she was going to pick up her work schedule to begin work the next day. Ramirez learned that Appellant did not appear for her first day at work because of a death in the family, nor did she appear the next day as required. On January 14, 2019, Appellant told Ramirez that she no longer worked at Whataburger because she lacked transportation. On that same date, Appellant reported, for the first time, that she was working at Veterans Recycling. However , Ramirez stated that she talked to Appellant daily about obtaining employment since November 2018, and Appellant never mentioned Veterans Recycling. Daniel Isaac Losby, owner of Veterans Recycling, a construction site cleanup and demolition business, sta ted that he opened his business on November 14, 2018. Appellant began working for him as a part

- time employee on November 14 until she was taken into custody as a
result of the revocation motion. Losby described Appellant as the “[b]est employee [he has] had in years.” Michael Neeley, Appellant’s father, testified that Appellant lived with him and has been suffering from emotional problems. On or about January 23, 2019, Neeley took Appellant to the University of Texas Behavioral Health Center and she wa s admitted for approximately two to three days. He stated that Appellant was overwhelmed and tried to harm herself. Neeley stated that he contacted Ramirez the day that Appellant was admitted to the hospital. After the revocation hearing, the trial cour t found three of the allegations to be “true,” found the paragraph requiring Appellant to obtain her GED to be “not true,” granted the State’s motion to adjudicate, revoked Appellant’s community supervision, adjudged Appellant guilty of
abandonment or chil d endangerment

— criminal negligence, and assessed her punishment at confinement in a state jail facility for fifteen months. 2 This appeal followed.

2 An individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than one hundred and eighty days, and a fine not to exceed $10,00 0.00. T EX

. P ENAL C ODE A NN

. § 12.35 (West 201 9 ).4 A NALYSIS P URSUANT TO A NDERS V
. C ALIFORNIA Appellant’s counsel filed a brief in compliance with Anders and Gainous , stating that he 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 pred icated. From our review of counsel’s brief, it is apparent that 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 chronolog ical summation of the procedural history of the case, and further states that counsel is unable to raise any arguable issues for appeal. 3 Appellant filed a pro se response, 4 arguing that due to a conflict of interest with the district attorney’s office, s he believed that a special prosecutor would be appointed to prosecute her case. However, she said, no special prosecutor was appointed. Moreover, she argued that she was threatened by the father of her child regarding this case, and that she had been ass aulted by him.
We have reviewed the record for reversible error and have found none. See Bledsoe v. State , 178 S.W.3d 824, 826

- 27 (Tex. Crim. App. 2005).

C ONCLUSION As required by Stafford v. State , 813 S.W.2d 503, 511 (Tex. Crim. App. 1991), Appellant’ s counsel moved for leave to withdraw. See also In re Schulman , 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the merits. Having done so and finding no reversible error, Appellant’s counsel’s motion for leave to withdraw is hereby granted , and the trial court’s judgment is affirmed

. See T EX

. R. A PP

. P. 43.2. Appellant’s 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 her of her right to file a petition for discretionary review. See T EX

. R. A PP

. P. 48.4; In re Schulman , 22 S.W.3d at 411 n.35. Should Appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, she

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

3 In compliance with Kelly v. State , Appellant’s counsel provided Appellant with a copy of the brief, notified Appellant of h is motion to withdraw as counsel, informed Appellant of her right to file a pro se response, and took concrete measures to facilitate Appellant’s review of the appellate record. See Kelly v. State , 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). Appellant was given time to file her own brief.

4 Although Appellant filed a pro se response, her response did not comply with Texas Rule of Appellate Procedure 9.5, requiring that she serve a copy of the document on all parties to the proceeding. See T EX

. R. A PP

. P. 9.5. However, in the interests of justice, we will consider her brief.5 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 th e date of either this opinion or, if a motion for rehearing is filed, the date that the last timely motion for rehearing is overruled by this

court. See T EX

. R. A PP

. P. 68.2(a). Any petition for discretionary review must be filed with the
Texas Court of Criminal Appeals. See T EX

. R. A PP

. 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
T EX

. R. A PP

. P. 68.4; In re Schulman , 252 S.W.3d at 408 n.22. Opinion delive red October 31, 2019. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

OCTOBER 31 , 2019

NO. 12

- 19

- 00138

- CR

KELSI LOGAN NEELEY, Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 114th District Court of Smith County, Texas (Tr.Ct.No. 114

- 1209

- 18)

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 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., Hoyle, J. and Neeley, J.