Tosha Ladiacay Harkins v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00357-CR
___________________________
TOSHA LADIACAY HARKINS, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 355th District Court
Hood County, Texas
Trial Court No. CR13689
Before Sudderth, C.J.; Gabriel and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
After hearing testimony and considering evidence establishing (1) that a glass
pipe with residue tested positive for methamphetamine and Tosha Ladiacay Harkins’s
DNA, and (2) that the glass pipe was among other drug paraphernalia1 found in the
home where Harkins and her two-month old infant resided, a jury convicted Harkins
of the offenses of endangering a child and possession of less than one gram of a
controlled substance. Finding the State’s enhancement paragraphs true, the jury
assessed Harkins’s punishment at seven years’ confinement for each offense. See Tex.
Health & Safety Code Ann. §§ 481.102(6) (providing methamphetamine is a Penalty
Group 1 controlled substance), .115(a), (b) (providing possession of less than one
gram of a Penalty Group 1 controlled substance, including adulterants or dilutants, is
a state jail felony); Tex. Penal Code Ann. §§ 12.34(a) (providing range of confinement
for third-degree felony is two to ten years), .425(a) (requiring that state jail felony
defendant, who has previously been finally convicted of two state jail felony offenses,
be sentenced within the range of confinement for a third-degree felony). The trial
court sentenced her accordingly.
Harkins’s court-appointed appellate counsel has filed a motion to withdraw as
counsel and a brief in support of that motion. Counsel’s brief and motion meet the
requirements of Anders v. California by presenting a professional evaluation of the
1
The paraphernalia included a straw containing remnants of methamphetamine,
a butane lighter, scales, plastic baggies, Q-Tips®, and a marijuana pipe.
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record and demonstrating why there are no arguable grounds for relief. 386 U.S. 738,
744, 87 S. Ct. 1396, 1400 (1967); see In re Schulman, 252 S.W.3d 403, 406–12 (Tex.
Crim. App. 2008) (orig. proceeding) (analyzing the effect of Anders). Appellate
counsel notified Harkins of counsel’s motion and Anders brief and informed her of
her right to obtain the record on appeal, to file a pro se response to counsel’s Anders
brief, and to file a petition for discretionary review if the judgment is affirmed in this
court. See Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014) (specifying in part
that appointed counsel must notify the client regarding the motion and brief and
provide the client a copy of each and setting forth other requirements that counsel
must satisfy to assist the client in understanding her pro se rights and effectuating
those rights and securing pro se access to the record).
Appellate counsel also provided to Harkins a prepared form to request access
to the record, which Harkins signed and filed in this court on January 7, 2019. The
clerk of the 355th District Court in Hood County, Texas, has filed with this court a
certification of certified mail showing that a copy of the record was mailed to
Harkins2 on January 10, 2019. On January 28, 2019, the package containing the
clerk’s and reporter’s records was returned to the clerk with a handwritten notation,
“RTS-offender refused,” and a label dated January 24, 2019, stating, “RETURN TO
SENDER—REFUSED—UNABLE TO FORWARD—RETURN TO SENDER.”
2
The record was mailed to the same address Harkins had provided to this court
on January 7, 2019.
3
On February 13, 2019, we sent notice to Harkins’s last known address informing her
that her appellate counsel had filed a motion to withdraw and an Anders brief in
support of the motion, that the trial court clerk had notified this court that the record
had been sent to Harkins by certified mail and had been returned to the clerk based
on Harkins’s refusal to accept it as noted on the package, and that she had the right to
file a pro se brief. In that letter, we also asked Harkins to advise the court within
fourteen days whether she wished to file a pro se response to her appellate counsel’s
Anders brief. We have not received any response or brief. The State declined to file a
brief.
When an appellant’s court-appointed counsel files a motion to withdraw on the
ground that an appeal is frivolous and fulfills the requirements of Anders, we must
independently examine the record to see if there is any arguable ground that may be
raised on the appellant’s behalf. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim.
App. 1991). When determining whether a ground for appeal exists, we consider the
record, the briefs, and any pro se response. See Schulman, 252 S.W.3d at 408–09. Only
after we conduct our own examination to determine whether counsel has correctly
assessed the case may we grant her motion to withdraw. See Penson v. Ohio, 488 U.S.
75, 82–83, 109 S. Ct. 346, 351 (1988).
We have carefully reviewed the record and counsel’s brief, we agree with
counsel that the appeal is wholly frivolous and without merit, and we find nothing in
the record that might arguably support the appeal. See Bledsoe v. State, 178 S.W.3d 824,
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826–27 (Tex. Crim. App. 2005). We therefore grant counsel’s motion to withdraw
and affirm the trial court’s judgment.
/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 26, 2019
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