Gary Lee Reid v. The State of TexasAppeal from 54th District Court of McLennan County (memorandum opinion by chief justice gray)

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IN THE TENTH COURT OF APPEALS No. 10-13-00364-CR GARY LEE REID, Appellant v. THE STATE OF TEXAS, Appellee From the 54th District Court McLennan County, Texas Trial Court No. 2012-2323-C2 MEMORANDUM OPINION Gary Lee Reid was convicted of possession of a controlled substance and possession of marijuana, both of which were enhanced by Reid s habitual offender status. See TEX. HEALTH & SAFETY CODE ANN. ยงยง 481.115 & 481.121 (West 2010). After a jury trial, Reid was sentenced to 20 years in prison for each offense. Reid s appellate attorney filed an Anders brief in this appeal. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Reid was informed of his right to submit a brief or other response on his own behalf. He did not submit a brief or response. Counsel asserts in the Anders brief that after diligently and carefully examining the record and after diligently researching relevant case law and statutes, he has found that no non-frivolous issues exist. Counsel specifically discusses the sufficiency of the evidence; that during the guilt/innocence phase of the trial, there occurred no voir dire error, no constitutional error, no harmful error in the admission of evidence, no charge error, and no improper jury argument; and that no error occurred in the punishment phase of the trial. Counsel concludes that there are no non-frivolous issues to assert on appeal. Counsel's brief evidences a professional evaluation of the record for error, and we conclude that counsel performed the duties required of appointed counsel. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). In reviewing an Anders appeal, we must, "after a full examination of all the proceedings, ... decide whether the case is wholly frivolous." See Anders, 386 U.S. at 744; accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is "wholly frivolous" or "without merit" when it "lacks any basis in law or fact." McCoy v. Court of Appeals, 486 U.S. 429, 439 n. 10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988). Arguments are frivolous when they "cannot conceivably persuade the court." Id. at 436. Reid v. State Page 2 An appeal is not wholly frivolous when it is based on "arguable grounds." Stafford, 813 S.W.2d at 511. After reviewing counsel s brief and the entire record in this appeal, we determine the appeal to be wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). Accordingly, we affirm the trial court's judgment. Should Reid wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition and all copies of the petition for discretionary review must be filed with the Clerk of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3. (Tex. Crim. App. 1997, amended eff. Sept. 1, 2011). Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4. See also In re Schulman, 252 S.W.3d at 409 n.22. Counsel's motion to withdraw from representation of Reid is granted, and counsel is permitted to withdraw from representing Reid. Additionally, counsel must send Reid a copy of our decision, notify him of his right to file a pro se petition for discretionary review, and send this Court a letter certifying counsel's compliance with Reid v. State Page 3 Texas Rule of Appellate Procedure 48.4. TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 409 n.22. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed May 8, 2014 Do not publish [CR25] Reid v. State Page 4

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