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Rackley v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
Feb 28, 2018
NO. 03-17-00653-CR (Tex. App. Feb. 28, 2018)

Opinion

NO. 03-17-00653-CR

02-28-2018

Andrew James Rackley, Appellant v. The State of Texas, Appellee


FROM THE 426TH JUDICIAL DISTRICT COURT OF BELL COUNTY
NO. 77278 , HONORABLE FANCY H. JEZEK, JUDGE PRESIDING MEMORANDUM OPINION

Appellant Andrew James Rackley pleaded guilty to the offense of possession of less than one gram of methamphetamine, a state jail felony. See Tex. Health and Safety Code §§ 481.102(6) (listing methamphetamine as substance included in "Penalty Group 1"), .115(a)-(b) (providing that person commits offense if he "knowingly or intentionally possesses a controlled substance listed in Penalty Group 1" and that offense "is a state jail felony if the amount of the controlled substance possessed is . . . less than one gram"). The trial court found him guilty and assessed his punishment at two years' confinement in the Texas Department of Criminal Justice's State Jail Division. See Tex. Penal Code § 12.35(a) (setting out permissible punishment range for state jail felony). However, the trial court suspended imposition of that sentence and instead placed him on five years' community supervision. Rackley appeals the district court's judgment of conviction.

Rackley's court-appointed attorney has filed a motion to withdraw supported by a brief concluding that the appeal is frivolous and without merit. Counsel's brief meets the requirements of Anders v. California by presenting a professional evaluation of the record and demonstrating that there are no arguable grounds to be advanced. See 386 U.S. 738, 744-45 (1967); Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penson v. Ohio, 488 U.S. 75, 81-82 (1988) (explaining that Anders briefs serve purpose of "assisting the court in determining both that counsel in fact conducted the required detailed review of the case and that the appeal is . . . frivolous"). Rackley's counsel has represented to the Court that she provided copies of the motion and brief to Rackley; advised Rackley of his right to examine the appellate record, file a pro se brief, and pursue discretionary review following the resolution of the appeal in this Court; and provided Rackley with a form motion for pro se access to the appellate record along with the mailing address of this Court. See Kelly v. State, 436 S.W.3d 313, 319-21 (Tex. Crim. App. 2014). Rackley has not requested a copy of the appellate record nor filed a pro se brief.

We have independently reviewed the record and have found nothing that might arguably support the appeal. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766. We agree with counsel that the appeal is frivolous and without merit. We grant counsel's motion to withdraw and affirm the judgment of conviction.

No substitute counsel will be appointed. Should Rackley wish to seek further review of his case 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. See generally Tex. R. App. P. 68-79 (governing proceedings in Court of Criminal Appeals). Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the date that this Court overrules the last timely motion for rehearing filed. See id. R. 68.2. The petition must be filed with the clerk of the Court of Criminal Appeals. Id. R. 68.3(a). If the petition is mistakenly filed with this Court, it will be forwarded to the Court of Criminal Appeals. Id. R. 68.3(b). Any petition for discretionary review should comply with the rules of appellate procedure. See id. R. 68.4. Once this Court receives notice that a petition has been filed, the filings in this case will be forwarded to the Court of Criminal Appeals. See id. R. 68.7.

/s/_________

David Puryear, Justice Before Justices Puryear, Field, and Bourland Affirmed Filed: February 28, 2018 Do Not Publish


Summaries of

Rackley v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
Feb 28, 2018
NO. 03-17-00653-CR (Tex. App. Feb. 28, 2018)
Case details for

Rackley v. State

Case Details

Full title:Andrew James Rackley, Appellant v. The State of Texas, Appellee

Court:TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Date published: Feb 28, 2018

Citations

NO. 03-17-00653-CR (Tex. App. Feb. 28, 2018)