HARLAN SOLIS v. THE STATE OF TEXAS--Appeal from County Court at Law No 1 of Nueces County

 
NUMBER 13-02-00663-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 
HARLAN SOLIS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the County Court at Law No. 1

of Nueces County, Texas.

 
MEMORANDUM OPINION

Before Justices Hinojosa, Ya ez, and Garza

Opinion by Justice Hinojosa

A jury found appellant, Harlan Solis, guilty of the misdemeanor offense of possession of two ounces or less of marihuana, (1) and the trial court assessed his punishment at 180 days confinement in the Nueces County jail. Even though appellant had two prior probated sentences for possession of marihuana, the trial court suspended appellant's sentence and placed him on community supervision for a period of twenty-four months.

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here. Tex. R. App. P. 47.4.

A. Appellant's Appeal

Appellant's court-appointed counsel has filed a brief in which she states that she has reviewed the clerk's record and reporter's record and has concluded that appellant's appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744 (1967). Even though appellant's counsel has concluded that this appeal is frivolous and without merit, she asserts in the brief that "[t]he only possible issue in the case is whether the evidence is legally or factually sufficient to support the conviction." After setting out the standard of review, appellant's counsel analyzes the evidence, and concludes that the evidence is legally and factually sufficient to support appellant's conviction for possession of two ounces or less of marihuana. The brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal. See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).

In the brief, appellant's attorney certifies that she mailed a copy of the brief to appellant on March 10, 2003. Appellant's attorney also certifies that she informed appellant by letter, dated March 9, 2003, of his right to review the appellate record and to file a pro se brief. No such brief has been filed.

1. Legal Sufficiency

When we review the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The standard is the same for both direct and circumstantial evidence cases. Earhart v. State, 823 S.W.2d 607, 616 (Tex. Crim. App. 1991); Vela v. State, 771 S.W.2d 659, 660 (Tex. App.--Corpus Christi 1989, pet. ref'd).

The jury, as the trier of fact, may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when giving effect to the inferences that may be reasonably drawn from the evidence. Booker v. State, 929 S.W.2d 57, 60 (Tex. App.--Beaumont 1996, pet. ref'd). As fact finder, the jury is the exclusive judge of the credibility of witnesses and the weight to be afforded their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). The jury is free to accept one version of the facts, reject another, or reject all or any of a witness's testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). Simply because the defendant presents a different version of the facts does not render the State's evidence insufficient. Anderson v. State, 701 S.W.2d 868, 872 (Tex. Crim. App. 1985).

After reviewing the evidence in the record, we conclude that any rational trier of fact could have found the essential elements of the offense of possession of two ounces or less of marihuana beyond a reasonable doubt. We agree with appellant's attorney that the evidence is legally sufficient to support appellant's conviction.

2. Factual Sufficiency

When we review the factual sufficiency of the evidence, we review all of the evidence and set aside the verdict only if (1) the evidence is so weak as to be clearly wrong and manifestly unjust or (2) the verdict is against the great weight of the evidence. Johnson, 23 S.W.3d at 11. We are not bound to view the evidence in the light most favorable to the prosecution and may consider the testimony of all the witnesses. Id. at 10-12. Disagreeing with the fact finder's determination is appropriate only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice; otherwise, due deference must be accorded the fact finder's determinations, particularly those concerning the weight and credibility of the evidence. Id.

After reviewing all the evidence in the record, we conclude that the verdict is not so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. We agree with appellant's attorney that the evidence is factually sufficient to support appellant's conviction. Appellant's "possible" issue is overruled.

Upon receiving a "frivolous appeal" brief, appellate courts must conduct "a full examination of all the proceeding[s] to decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S. 75, 80 (1988). We have carefully reviewed the appellate record and counsel's brief. We find nothing in the record that might arguably support the appeal. We agree with appellant's counsel that the appeal is wholly frivolous and without merit.

The trial court's judgment is affirmed.

B. Counsel's Motion to Withdraw

In accordance with Anders, appellant's attorney has asked permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744. We grant the attorney's motion to withdraw. We order appellant's attorney to notify appellant of the disposition of this appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).

FEDERICO G. HINOJOSA

Justice

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

Opinion delivered and filed this the

12th day of June, 2003.

1. Tex. Health & Safety Code Ann. 481.121(b)(1) (Vernon 2003).