Opinion
No. 07-17-00272-CR
11-29-2017
KEITH SHIRODD SINGLETON, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 12th District Court Walker County, Texas
Trial Court No. 27730; Honorable Donald L. Kraemer, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Following an open plea of guilty, Appellant, Keith Shirodd Singleton, was convicted of possession of phencyclidine (PCP) in an amount of more than four grams but less than 200 grams, a second degree felony. Punishment was enhanced by two prior felony offenses which elevated the punishment range to a term of not more than ninety-nine years or less than twenty-five years. The trial court assessed punishment at sixty years confinement. In presenting this appeal, counsel has filed an Anders brief in support of a motion to withdraw. We affirm and grant counsel's motion to withdraw.
TEX. HEALTH AND SAFETY CODE ANN. §§ 481.102(8), 481.115(a), (d) (West 2017).
TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2017).
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
Originally appealed to the Tenth Court of Appeals, this appeal was transferred to this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV'T CODE ANN. § 73.001 (West 2013). Should a conflict exist between precedent of the Tenth Court of Appeals and this court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3.
In support of his motion to withdraw, counsel certifies he has conducted a conscientious examination of the record, and in his opinion, it reflects no potentially plausible basis for reversal of Appellant's conviction. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008). Counsel candidly discusses why, under the controlling authorities, the record supports that conclusion. See High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978). Counsel has demonstrated that he has complied with the requirements of Anders and In re Schulman by (1) providing a copy of the brief to Appellant, (2) notifying him of the right to file a pro se response if he desired to do so, and (3) informing him of the right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408. By letter, this court granted Appellant an opportunity to exercise his right to file a response to counsel's brief, should he be so inclined. Id. at 409 n.23. Appellant did not file a response. Neither did the State favor us with a brief.
Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary review upon execution of the Trial Court's Certification of Defendant's Right of Appeal, counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together with notification of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408 n.22, 411 n.35. The duty to send the client a copy of this court's decision is an informational one, not a representational one. It is ministerial in nature, does not involve legal advice, and exists after the court of appeals has granted counsel's motion to withdraw. Id. at 411 n.33.
BACKGROUND
In December 2015, Appellant was stopped for a traffic offense in front of a residence and was hesitant to provide the officer with his license and insurance information. The officer detected a chemical odor associated with PCP and described Appellant as "digging between the center console and his driver's seat." Appellant then began yelling for his common-law wife who was inside the residence.
Once Appellant was identified, the officer realized he knew him from previous encounters.
Appellant ignored several requests to exit his vehicle. The officer deployed his taser to gain compliance and Appellant eventually exited the vehicle and was handcuffed.
The odor of PCP became stronger and a search of Appellant's vehicle revealed a bottle containing PCP behind the driver's seat. Testing showed the bottle contained 31.47 grams of a substance containing PCP. Appellant was indicted in the underlying cause for possession of phencyclidine.
The reporter's record reference's a second cause number for possession with intent to deliver a controlled substance. That cause, however, was disposed of by the Tenth Court of Appeals based on a late-filed notice of appeal. See Singleton v. State, No. 10-17-00243-CR, 2017 Tex. App. LEXIS 8710, at *2 (Tex. App.—Waco Sept. 13, 2017, no pet.).
While out on bond for the underlying offense, Appellant was stopped in May 2016, for a traffic offense that escalated into a charge of driving while intoxicated. The arresting officer suspected that Appellant was driving under the influence of PCP. Earlier in 2015, specifically on June 15th, officers had gone to an apartment complex to arrest Appellant based on a parole warrant. Appellant was placed into custody and consent to search was obtained from the resident on the lease. The investigator observed contraband in plain view and found a Pringles can with cash. He also found a brown paper bag containing bottles of what looked like PCP. Appellant had a similar bottle in his pocket which testing showed was over ten grams of PCP. The remaining bottles contained over 90 grams of PCP.
At the time of the underlying hearing, test results on Appellant's blood were not yet available to confirm whether he was under the influence of PCP.
Appellant did not reside at the apartment but frequented it.
During the punishment hearing, Appellant and his wife both testified to his addiction to PCP. His addiction to PCP began when he was fourteen years old and his criminal history spans more than two decades and includes various types of offenses and gang affiliations. He testified to his desire to change his life and offered evidence of completion of a substance abuse program on November 23, 2016.
During closing arguments, the State urged a minimum of thirty years confinement while Appellant argued for the opportunity to get further treatment and change his life. The State's recommendation notwithstanding, the trial court assessed a sentence of sixty years confinement—a sentence within the statutory range of punishment under section 12.42(d) of the Texas Penal Code.
ANALYSIS
By the Anders brief, counsel evaluates possible arguments on appeal including sufficiency of the evidence, the effectiveness of trial counsel's representation, the voluntariness of Appellant's plea, the charging instrument, and the legality of the sentence imposed. He concludes they would not result in reversible error and concedes there are no arguable issues to advance on appeal.
We have also independently examined the record to determine whether there are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d at 409; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We have found no such issues. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). After reviewing the record and counsel's brief, we agree with counsel that there is no plausible basis for reversal of Appellant's conviction. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
CONCLUSION
Accordingly, the trial court's judgment is affirmed and counsel's motion to withdraw is granted.
Patrick A. Pirtle
Justice Do not publish.