IN THE
TENTH COURT OF APPEALS
No. 10-14-00122-CR
OTIS DWAYNE KIRVEN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2012-1545-C1
ORDER
In Trial Court Case No. 2012-1545-C1, Appellant Otis Dwayne Kirven pleaded
guilty to aggravated assault (Count One) and failure to stop and render aid (Count Two).
Kirven also pleaded true to the enhancement allegation. A jury then assessed Kirven’s
punishment at thirty-five and twenty years’ imprisonment respectively, to be served
concurrently. Two judgments were signed, one for each count.
Kirven filed one notice of appeal, showing his desire to appeal from “the judgment
of conviction and sentence” rendered against him in Trial Court Case No. 2012-1545-C1.
The appeal therefore bears one case number, Court of Appeals No. 10-14-00122-CR.
Kirven’s appointed appellate counsel initially filed a brief challenging only the
judgment and sentence for Count Two. Kirven’s appointed appellate counsel has now
filed a “letter brief pursuant to Anders,” asserting that he has diligently reviewed the
appellate record for Count One and that, in his opinion, any arguments as to that
conviction are frivolous.1 See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
493 (1967).
In light of the foregoing, we sua sponte sever this appeal into separate cause
numbers, one for each judgment. Thus, the appeal of the judgment entered as to Count
One will remain docketed as Court of Appeals No. 10-14-00122-CR. The appeal of the
judgment entered as to Count Two will be docketed as Court of Appeals No. 10-15-00359-
CR. The August 27, 2015 submission of No. 10-14-00122-CR is set aside.
Kirven’s appointed appellate counsel is directed to file a motion to withdraw in
No. 10-14-00122-CR in compliance with the requirements set forth in Kelly v. State, 436
S.W.3d 313, 318-19 (Tex. Crim. App. 2014), within 14 days of the date of this Order. We
1 Kirven’s appointed appellate counsel states in the letter brief:
A brief has previously been filed on Appellant’s behalf addressing the sentence on the
failure to stop and render aid. Counsel, after a thorough examination of the record, was
unable to develop any non-frivolous points of appeal as to the aggravated assault
conviction and sentence. Appellant, however, insists that counsel prepare something
appealing the aggravated assault conviction or an Anders brief on that point. Counsel is
therefore submitting this letter brief pursuant to Anders on the aggravated assault
conviction.
Kirven v. State Page 2
will construe Kirven’s appellate counsel’s “letter brief pursuant to Anders” as his Anders
brief. Kirven has filed a pro se response to the “letter brief pursuant to Anders” that cites
to the record, so it appears that he has a copy of the record. Kirven’s appellate counsel is
directed to confirm with the Court by letter whether Kirven has been provided a copy of
the record.
The pro se response does not contain proof of service; however, to expedite this
matter, we invoke Appellate Rule 2 to suspend Rule 9.5’s proof-of-service requirement
for this document only. The Clerk of this Court is directed to send copies of the pro se
response to Kirven’s appointed appellate counsel and the State. Within 30 days of the
date of this Order, the State may file a reply to Kirven’s pro se response or notify the
Court that the State will not be filing a reply.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Order issued and filed October 22, 2015
Do not publish
Kirven v. State Page 3