No. 01-08-00364-CR
Opinion issued June 11, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 179th District Court Harris County, Texas, Trial Court Cause No. 1112421.
Panel consists of Justices TAFT, BLAND, and SHARP.
JANE BLAND, Justice.
A jury convicted appellant, Ronnie Lee Hunter, of the first-degree felony offense of possession of a controlled substance, namely cocaine, weighing between four and two hundred grams. The trial court assessed punishment at thirty-three years' confinement. Hunter's counsel on appeal has submitted a brief stating her professional opinion that the appeal is without merit and that there are no arguable grounds for reversal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Hunter filed a pro se response. In his pro se response, Hunter contends (1) the evidence obtained to support the jury's finding that he possessed between four and two hundred grams of cocaine was the product of an illegal search and seizure, and (2) the evidence is legally insufficient to support a conviction of possession because it is based on an informant's tip to police that was uncorroborated. We have reviewed the record and, having found no reversible error, we affirm Hunter's conviction.
Background
On or about April 13, 2007, Officer C. Slater responded to a call to the Southwind Motel, located near Interstate Highway 45 in northwest Harris County, a location that, according to Slater, was frequented for prostitution and drug use. When he arrived, Slater observed two black males standing outside near the northern side of the motel building. The men appeared to be smoking, so the officer drove into the motel parking lot to investigate further. As Slater drew closer, he saw that the men appeared to be using crack cocaine. When the men saw Slater approaching, they threw three crack pipes on the ground and tried to run away. When Slater retrieved the pipes, he found that two of them were still warm. Slater took the two men into custody and secured them in his vehicle, then called Officer W. Eckert for reinforcement. When Eckert arrived, Slater told him that, according to the suspects, they purchased the crack cocaine from a man in Room 305 of the motel. The officers found the room, and Officer Eckert knocked on the door. Slater heard shuffling and moving around the room. Eventually, a white female opened the door. At about the same time, Officer Slater heard a male voice say, "close the door." From the open door, Slater saw two women standing near the bed's headboard and Hunter sitting on the edge of the bed. Hunter jumped up, grabbed an ashtray from the dresser, and rushed toward the bathroom. In Slater's experience, it is common for individuals caught with contraband to try to flush it down the toilet. As Eckert pursued Hunter, Hunter lost his footing as he tried to turn the corner into bathroom. Hunter fell, and, after a brief struggle, Eckert restrained and handcuffed him. Eckert recovered a "cookie" of crack cocaine (about 10 grams) from under a pile of clothing in the bathroom. The officers also found smaller pieces of crack cocaine in the ashtray. In Hunter's experience, only dealers possessed crack cocaine in "cookie" form; they broke it into smaller pieces for sale. Hunter also had a little over $1,300 cash at the time of arrest. Eckert testified consistently with Slater's testimony and report. Mona Medalla, a criminalist with the Houston Police Crime Lab, determined that the substance recovered by the officers from Room 305 was ten grams of cocaine. Anders Procedure
The brief submitted by Hunter's court-appointed counsel states his professional opinion that there are no arguable grounds for reversal on appeal and that any appeal would, therefore, lack merit. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Counsel's brief meets the minimum Anders requirements by presenting a professional evaluation of the record and stating why there are no arguable grounds for reversal on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex.Crim.App. 1969). Counsel sent a copy of the brief to Hunter, requested permission to withdraw from the case, and notified Hunter of his right to review the record and to file a pro se response. When we receive an Anders brief from a defendant's court-appointed attorney who asserts that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court — and not counsel — determines, after full examination of proceedings, whether case is "wholly frivolous"); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). In conducting our review, we consider any pro se response that the defendant files to his appointed counsel's Anders brief. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex.Crim.App. 2005). Our role in this Anders appeal, which includes reviewing Hunter's pro se response, is limited to determining whether arguable grounds for appeal exist. See id. at 827. If we determine that arguable grounds for appeal exist, we abate the appeal and remand the case to the trial court to allow the court-appointed attorney to withdraw. See id. The trial court then either appoints another attorney to present all arguable grounds for appeal or, if the defendant wishes, allows the defendant to proceed pro se. See id. We do not rule on the ultimate merits of the issues raised by Hunter in his pro se response. See id. If we determine that there are arguable grounds for appeal, Hunter is entitled to have new counsel address the merits of the issues raised. See id. "Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised." Id. If, on the other hand, we determine, from our independent review of the entire record, that the appeal is wholly frivolous, we may affirm the trial court's judgment. See id. at 826-28. Hunter may challenge the holding that there are no arguable grounds for appeal in a petition for discretionary review filed in the Court of Criminal Appeals. See id. at 827 n. 6. In accordance with Anders and Bledsoe, we have reviewed the record, Hunter's appointed counsel's Anders brief, and Hunter's pro se response to that brief. We conclude that no arguable ground for reversible error exists. Having reached that conclusion, we affirm the judgment of the trial court and grant Hunter's appointed counsel's motion to withdraw. Conclusion
We affirm the judgment of the trial court and grant appointed counsel's motion to withdraw.