Delton Tyrone Kendrick v. The State of Texas--Appeal from 385th District Court of Midland County

Opinion filed September 7, 2006

In The

Eleventh Court of Appeals

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   No. 11-06-00131-CR

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  DELTON TYRONE KENDRICK, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 385th District Court

Midland County, Texas

Trial Court Cause No. CR30588

O P I N I O N

The trial court convicted Delton Tyrone Kendrick, upon his plea of guilty, of possession of cocaine with the intent to deliver. A plea bargain agreement was not reached. The trial court assessed his punishment at confinement for five years. We affirm.

Appellant=s court-appointed counsel has filed a motion to withdraw. The motion is supported by a brief in which counsel professionally and conscientiously examines the record and applicable law and states that she has concluded that the appeal is frivolous. Following the procedures outlined in Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), counsel has identified arguable grounds and presents them in seven potential points of error.

In the first potential point, counsel questions the sufficiency of the indictment. We agree with counsel=s conclusion that the indictment meets the requirements of Tex. Code Crim. Proc. Ann. art. 21.02 (Vernon 1989) and states an offense under Tex. Health & Safety Code Ann. ' 481.112 (Vernon 2003). This potential point is without merit.

The second potential point addresses whether the trial court ruled appropriately on pretrial motions. As noted by counsel, there were no pretrial motions; therefore, the trial court could not have erred. The second potential point does not present any arguable grounds.

The record reflects that the trial court sufficiently admonished appellant pursuant to Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2006) and supports the trial court=s conclusion that appellant freely, voluntarily, and knowingly entered his plea of guilty. Therefore, the third potential point lacks any merit.

The record does not support the challenge in the fourth potential point that appellant=s waiver of a jury trial was invalid. The record does support counsel=s contention that appellant waived his right to a jury trial, that his counsel and the State consented to that waiver, and that the trial court accepted that waiver. The fourth potential point is not an arguable point for an appeal.

In the fifth potential point, counsel examines whether the evidence was both legally and factually sufficient to support the conviction. Midland Police Department Property Detective Geovarcey Mitchell testified that a total of 5.42 grams of cocaine was recovered, 3.3 grams of which was recovered next to appellant=s feet under the seat directly in front of where appellant was sitting in the car. The male passenger told Officer Mitchell that the cocaine was appellant=s, and appellant told Officer Mitchell that he was responsible for the total amount. During his direct examination, appellant told the trial court that he took responsibility for Awhat [he] did@ and that he was Apleading guilty for what [he] did.@

The trial court, as the finder of fact, was the sole judge of the weight and credibility of the testimony. Adelman v. State, 828 S.W.2d 418 (Tex. Crim. App. 1992); DeBolt v. State, 604 S.W.2d 164 (Tex. Crim. App. 1980). An appellate court only reviews the fact-finder=s weighing of the evidence and cannot substitute its own judgment for that of the fact-finder. Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). Due deference must be given to the fact-finder=s determination, particularly concerning the weight and credibility of the evidence. Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996).

When viewed in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jacksonv. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). When all of the evidence is viewed in a neutral light, the evidence supporting guilt is not so weak that the verdict is clearly wrong and manifestly unjust; and the evidence contrary to the verdict is not so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004); Ross v. State, 133 S.W.3d 618 (Tex. Crim. App. 2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); Cain, 958 S.W.2d 404; Clewis, 922 S.W.2d 126. Counsel correctly concludes that the evidence is both legally and factually sufficient to support the conviction. Therefore, the fifth potential point has no merit.

In the sixth potential point, counsel questions whether the punishment assessed is supported by the record. Section 481.112(d) defines the offense as a first degree felony. The record reflects that appellant asked the trial court to defer his adjudication of guilt and place him on community supervision and that the trial court specifically admonished appellant that just because he entered a plea of guilty and requested deferred adjudication did not mean that that is what the trial court would decide to do. Evidence of appellant=s prior nolo contendere pleas and resulting convictions of a 2005 misdemeanor possession of marihuana offense, a 2001 misdemeanor possession of marihuana offense, and a 1999 misdemeanor disorderly conduct offense was admitted. The trial court assessed appellant=s punishment at the minimum authorized for a person convicted of a first degree felony offense.[1] A penalty assessed within the range of punishment established by the legislature will not be disturbed on appeal. Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984); Bradfield v. State, 42 S.W.3d 350 (Tex. App.CEastland 2001, pet. ref=d). No arguable ground for an appeal is presented in the sixth potential point.

In her final potential point, counsel examines the effectiveness of trial counsel. After examining the entire record before this court, we agree with appellate counsel=s conclusion that appellant was afforded reasonably effective assistance of counsel at trial. Wiggins v. Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668 (1984); Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). This potential point lacks merit as well.

Counsel has provided appellant with a copy of the brief and advised appellant of his right to review the record and file a response to counsel=s brief. A response has not been filed. Court-appointed counsel has complied with the requirements of Anders, 386 U.S. 738; Stafford, 813 S.W.2d 503; High, 573 S.W.2d 807; Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); Eaden v. State, 161 S.W.3d 173 (Tex. App.CEastland 2005, no pet.).

Following the procedures outlined in Anders, we have independently reviewed the record, and we agree that the appeal is without merit. We further note that appellate counsel filed a comprehensive brief in support of her motion to withdraw and has provided appellant with the most effective representation she could afford him in this case.

The motion to withdraw is granted, and the judgment of the trial court is affirmed.

PER CURIAM

September 7, 2006

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.

[1]Tex. Pen. Code Ann. ' 12.32 (Vernon 2003) provides that a person convicted of a first degree felony shall be imprisoned for a term of not less than five years and not more than ninety-nine years or life. An optional fine not to exceed $10,000 is also authorized.