In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-14-00177-CR
No. 07-14-00178-CR
________________________
KENNETH HAYES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 140th District Court
Lubbock County, Texas
Trial Court Nos. 2002-400,482 & 2002-400,483;
Honorable Jim Bob Darnell, Presiding
January 8, 2015
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
In July 2013, pursuant to article 64.01(c) of the Texas Code of Criminal
Procedure, counsel was appointed to represent Appellant, Kenneth Hayes, to pursue
motions for DNA testing of evidence related to his 2004 convictions for aggravated
sexual assault of a child. As required by article 64.02(a)(2)(B), the State’s attorney
responded with an affidavit explaining that law enforcement did not collect any physical
evidence that would contain biological material subject to DNA testing. See Murphy v.
State, 111 S.W.3d 846, 848 (Tex. App.—Dallas 2003, no pet.). According to the
affidavit, Appellant’s two young victims had made delayed outcries of the sexual
assaults and the results of their examinations did not produce biological material to test.
Without a hearing, the trial court denied both motions and Appellant prosecuted these
appeals. In presenting this appeal, counsel has filed an Anders1 brief in support of a
motion to withdraw. We grant counsel’s motion and affirm.
In support of his motion to withdraw, counsel certifies he has conducted a
conscientious examination of the record, and in his opinion, the record reflects no
potentially plausible basis for reversal of Appellant’s conviction. Anders v. California,
386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Schulman, 252
S.W.3d 403, 406 (Tex. Crim. App. 2008). Counsel candidly discusses why, under the
controlling authorities, the record supports that conclusion. See High v. State, 573
S.W.2d 807, 813 (Tex. Crim. App. 1978). Counsel has demonstrated he has complied
with the requirements of Anders and In re Schulman by (1) providing a copy of the brief
to Appellant, (2) notifying him of his right to review the record and file a pro se response
if he desired to do so,2 and (3) informing him of his right to file a pro se petition for
discretionary review. In re Schulman, 252 S.W.3d at 408.3 By letter, this Court granted
Appellant an opportunity to exercise his right to file a response to counsel’s brief, should
1
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
2
Pursuant to Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014), counsel provided a copy of
the appellate record to Appellant.
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Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary
review upon execution of the Trial Court’s Certification of Defendant’s Right of Appeal, counsel must
comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within
five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together
with notification of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d
at 408 n.22 & 411 n.35. The duty to send the client a copy of the court of appeals’s decision is an
informational one, not a representational one. It is ministerial in nature, does not involve legal advice, and
exists after the court of appeals has granted counsel’s motion to withdraw. Id. at 411 n.33.
2
he be so inclined. Id. at 409 n.23. Appellant did not file a response. Neither did the
State favor us with a brief.
We have independently examined the entire record to determine whether there
are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488
U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); In re Schulman, 252 S.W.3d at
409; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We have found no
such issues. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). After
reviewing the record and counsel’s brief, we agree with counsel that there is no
plausible basis for reversal. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim.
App. 2005).
Accordingly, the trial court’s judgments are affirmed and counsel's motion to
withdraw is granted.
Patrick A. Pirtle
Justice
Do not publish.
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