Kenneth Wayne Banton v. the State of Texas

NUMBERS 13-24-00544-CR, 13-24-00545-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

KENNETH WAYNE BANTON, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 36TH DISTRICT COURT
OF ARANSAS COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices West and Fonseca
Memorandum Opinion by Justice Fonseca

Appellant Kenneth Wayne Banton pleaded guilty to the offenses of evading arrest

or detention while using a vehicle, a third-degree felony, and to possession of a controlled

substance in Penalty Group 1 in an amount greater than four grams but less than 200

grams, a second-degree felony. See TEX. PENAL CODE ANN. § 38.04(b)(2)(A); TEX. HEALTH

& SAFETY CODE ANN. § 481.112(d). On January 19, 2022, the trial court convicted
appellant, sentenced appellant to ten years’ imprisonment for both offenses, suspended

the sentences, and placed him on community supervision for five years. See TEX. CODE

CRIM. PROC. ANN. art. 42A.053(a). The State filed a motion to revoke, and at the motion

hearing appellant pleaded true to violating the terms of his community supervision. The

trial court revoked appellant’s community supervision for both offenses and sentenced

him to ten years’ imprisonment on both counts, to run concurrently with each other but to

run consecutively to a sentence appellant received in a separate case in Parker County.

Appellant’s court-appointed appellate counsel has filed a brief stating that there

are no arguable grounds for appeal in either case. See Anders v. California, 386 U.S. 738

(1967). We affirm.

I. ANDERS BRIEF

Counsel states in his briefs that he has diligently reviewed the entire record and

that “there are no non-frivolous issues to be raised” on appeal. See id.; High v. State, 573

S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). Counsel’s briefs meet the

requirements of Anders as they present a thorough, professional evaluation showing why

there are no arguable grounds for advancing an appeal. See In re Schulman, 252 S.W.3d

403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“In Texas, an Anders brief need

not specifically advance ‘arguable’ points of error if counsel finds none, but it must provide

record references to the facts and procedural history and set out pertinent legal

authorities.”); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).

In compliance with Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014),

counsel has carefully discussed why, under controlling authority, there is no reversible

error in the trial court’s judgments. Counsel has informed this Court that he has in both

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causes: (1) notified appellant that he has filed an Anders brief and motion to withdraw;

(2) provided appellant with copies of these pleadings; (3) informed appellant of his rights

to file a pro se response,1 to review the record prior to filing that response, and to seek

discretionary review if we conclude that the appeal is frivolous; and (4) provided appellant

with a form motion for pro se access to the appellate record that only requires appellant’s

signature and date with instructions to file the motion within ten days. See Anders, 386

U.S. at 744; Kelly, 436 S.W.3d at 319–20. In cause number 13-24-00544-CR, appellant

did not file a motion seeking pro se access to the appellate record and did not file a pro

se response. In cause number 13-24-00545-CR, appellant filed a motion seeking pro se

access to the appellate record but has not filed a pro se response.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488

U.S. 75, 80 (1988). We have reviewed the record in both cases and counsel’s briefs, and

we have found no arguable reversible error. Bledsoe v. State, 178 S.W.3d 824, 827–28

(Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in the opinion it

considered the issues raised in the brief and reviewed the record for reversible error but

found none, the court of appeals met the requirements of Texas Rule of Appellate

Procedure 47.1.”); Stafford, 813 S.W.2d at 509.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s court-appointed appellate counsel has filed

1 An appellant’s pro se response following the filing of an Anders brief “need not comply with the

rules of appellate procedure in order to be considered[; r]ather, the response should identify for the court
those issues which the indigent appellant believes the court should consider in deciding whether the case
presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008).

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motions to withdraw. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d

at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80 (Tex. App.—Dallas 1995, no

pet.) (“If an attorney believes the appeal is frivolous, he must withdraw from representing

the appellant. To withdraw from representation, the appointed attorney must file a motion

to withdraw accompanied by a brief showing the appellate court that the appeal is

frivolous.” (citations omitted))). We grant the motion to withdraw in both cases.

Counsel is ordered to send a copy of this memorandum opinion and its

accompanying judgment to appellant, and to advise him of his right to file a petition for

discretionary review in both cases, within five days of the date of this memorandum

opinion.2 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex

parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

IV. CONCLUSION

The trial court’s judgments are affirmed.

YSMAEL D. FONSECA
Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed on the
21st day of August, 2025.

2 No substitute counsel will be appointed. Should appellant wish to seek further review by the Texas

Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file
a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty
days from the date of either this opinion or the last timely motion for rehearing that was overruled by this
Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the
Texas Court of Criminal Appeals, see TEX. R. APP. P. 68.3(a), and must comply with the requirements of
Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.

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