NO. 07-06-0246-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
AUGUST 8, 2007
______________________________
KYLE DANE DUNN, APPELLANT 1
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;
NO. 52,176-C; HONORABLE PATRICK A. PIRTLE, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Kyle Dane Dunn, appeals his conviction for possession of a controlled
substance with intent to deliver and sentence of 17 years incarceration in the Institutional
Division of the Texas Department of Criminal Justice and $5,000 fine. 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.
1
The trial court’s judgment shows appellant’s name as Kyle Dan Dunn, but we will
be using the correct spelling of appellant’s name as Kyle Dane Dunn.
Appellant was charged by indictment with the offense of possession of a controlled
substance (methamphetamine), with intent to deliver, in an amount of four grams or more
but less than 200 grams. This indictment further charged that appellant committed the
offense in a drug-free zone. Following trial of appellant, the jury returned a verdict finding
him guilty of the offense of possession with intent to deliver, but not finding the offense to
have been committed in a drug-free zone. After a punishment hearing, the jury returned
a punishment verdict of 17 years imprisonment and a $5,000 fine. The jury’s verdicts were
accepted by the trial court and judgment was entered in accordance with the verdicts.
Appellant’s counsel has filed a brief, in compliance with Anders and Gainous, stating
that he has diligently reviewed the appellate record and applicable law 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 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 and motion
to withdraw have 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.
2
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 considered the merits and finding no
reversible error, appellant’s counsel’s motion to withdraw is granted2 and the trial court’s
judgment is affirmed.
Mackey K. Hancock
Justice
Do not publish.
2
In granting counsel’s motion to withdraw, however, we remind counsel to insure
that he has complied with the “educational” duty to inform appellant of his right to file a pro
se petition for discretionary review in the Court of Criminal Appeals. Ex parte Owens, 206
S.W.3d 670 (Tex.Crim.App. 2006).
3