Dustin Lee Kappel v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-25-00051-CR
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DUSTIN LEE KAPPEL, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 372nd District Court
Tarrant County, Texas
Trial Court No. 1674736

Before Birdwell, Womack, and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION

Appellant Dustin Lee Kappel pled guilty to the third-degree felony offense of

deadly conduct in exchange for three years’ deferred adjudication community

supervision, a $300 fine, and for the State to waive count one in the indictment. See

Tex. Penal Code Ann. §§ 22.05(b)(1), (e). The State filed its “Second Amended Petition

to Proceed to Adjudication” just under two years later, alleging five violations of

Kappel’s community supervision conditions. Kappel pled “true” to three of the State’s

allegations. The trial court ultimately found four of the State’s allegations “true,” and

sentenced Kappel to three years’ confinement. See id. § 12.34 (stating that a third-degree

felony punishment is two to ten years’ confinement and up to a $10,000 fine).

Kappel’s court-appointed appellate counsel has filed a motion to withdraw as

counsel and a supporting brief in which he avers that, in his professional opinion, this

appeal is frivolous. Counsel’s brief professionally evaluates the appellate record and

demonstrates why no arguable grounds for relief exist; the brief and withdrawal motion

meet the requirements of Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400

(1967). See Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim. App. 1991). Counsel

also complied with the requirements of Kelly v. State, 436 S.W.3d 313, 319–20 (Tex.

Crim. App. 2014).1

1
In Kelly, the Court of Criminal Appeals listed additional tasks an appointed
lawyer who files an Anders brief must perform:

2
Kappel did not seek access to the appellate record and did not file a pro se

response. The State filed a letter response in which it agreed with appellate counsel that

there are no meritorious grounds on which to advance an appeal.

After an appellant’s court-appointed counsel files a motion to withdraw on the

ground that an appeal is frivolous and fulfills Anders’s requirements, we must

independently examine the record for any arguable ground that may be raised on the

appellant’s behalf. See Stafford, 813 S.W.2d at 511. Only then may we grant counsel’s

motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).

We have carefully reviewed counsel’s brief and the appellate record. We agree

with counsel that an appeal would be wholly frivolous and without merit; we find

nothing in the appellate record that otherwise arguably might support an appeal. See

Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005); see also Meza v. State,

206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006).

He must write a letter to (1) notify his client of the motion to withdraw
and the accompanying Anders brief, providing him a copy of each,
(2) inform him of his right to file a pro se response and of his right to review
the record preparatory to filing that response, and (3) inform him of his
pro se right to seek discretionary review should the court of appeals declare
his appeal frivolous. To this list we now add that appointed counsel who
files a motion to withdraw and Anders brief must also (4) take concrete
measures to initiate and facilitate the process of actuating his client’s right
to review the appellate record, if that is what his client wishes.

436 S.W.3d at 319 (footnote omitted). The court also required counsel to supply the
appellant with the mailing address for the court of appeals. Id. at 320.

3
We grant counsel’s motion to withdraw and affirm the trial court’s judgment.

/s/ Brian Walker

Brian Walker
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 21, 2025

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