Evelyn Maxine Edwards v. State ( 1998 )

98149CR.Edwards-EvelynM.fgm.ab.wpd

  IN THE

TENTH COURT OF APPEALS

No. 10-98-149-CR

     EVELYN MAXINE EDWARDS,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 337th District Court

Harris County, Texas

Trial Court # 769,009

O P I N I O N

      The court convicted Appellant Evelyn Maxine Edwards of delivery of cocaine in an amount less than one gram. See Tex. Health & Safety Code Ann. § 481.112(b) (Vernon Supp. 1999). Edwards pleaded true to the two prior felony convictions alleged to enhance her punishment. The court sentenced her to fifteen years’ imprisonment.

      Edward’s appellate counsel filed a motion to withdraw from representation of Edwards with a supporting Anders brief. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967). We notified Edwards that she had the right to respond to counsel’s motion and brief, but she has not done so. See Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, order). We now address the potential sources of error identified by counsel and conduct an independent review of the record “to decide whether the case is wholly frivolous.” Anders, 386 U.S. at 744, 87 S. Ct. at 1400.

FACTUAL BACKGROUND

      The indictment alleges that Edwards committed the offense on or about November 20, 1997 by actually transferring cocaine to the recipient, by constructively transferring cocaine to the recipient, or by offering to sell cocaine to the recipient. See Tex. Health & Safety Code Ann. § 481.112(a) (Vernon Supp. 1999).

      The alleged recipient is an officer with the Houston Police Department. She testified that she approached Edwards in front of a convenience store. She introduced herself to Edwards, who asked her what she needed. The officer told Edwards she needed “a twenty.” Edwards told the officer she knew where she could get one and told the officer they could walk to that location. They walked about one block to a residence.

      Edwards told an unknown male standing in the yard of this residence that her companion needed “a twenty.” The unknown male walked to an adjacent lot and retrieved a container from underneath a piece of carpet. He removed several rocks of crack cocaine from the container then returned the container to its hiding place. He gave Edwards several rocks. She gave two to the officer who gave her twenty dollars in return. Edwards then delivered the money to the unknown male.

      Edwards and the officer then returned to the officer’s car, being driven by another undercover officer. At Edwards’ direction, the officers drove around the corner and dropped her off. The officers radioed a description of Edwards to other officers in the area who promptly arrested her.

      Both officers who participated in the undercover operation identified Edwards in court as the person with whom they dealt on the occasion in question. A Houston Police Department chemist testified that the substance obtained from Edwards constituted 412.6 milligrams of cocaine, being less than one gram.

      Edwards testified that she talked with the officers on the occasion in question but told them, “I don’t buy dope for nobody.” She steadfastly insisted that she neither purchased cocaine for the officers nor made arrangements for the officers to purchase cocaine. She admitted on cross-examination that she had previously been convicted four times of possessing cocaine and twice of prostitution.

      During the punishment phase, Edwards pleaded true to the two enhancement allegations contained in the indictment. The State offered without objection a penitentiary packet reflecting Edwards other two prior felony convictions. Edwards testified on her own behalf and asked the court for leniency because she is HIV positive. The court sentenced her as indicated above.

POTENTIAL SOURCES OF ERROR

      Counsel does not list potential sources of error as such in his brief. See, e.g., Mays v. State, 904 S.W.2d 923-24 (Tex. App.—Fort Worth 1995, no pet.). Rather, counsel analyzes the record and discusses “Possible Areas of Concern.” Counsel reviews the court’s jurisdiction, the indictment, the voluntariness of Edwards’ written jury waiver, the effectiveness of counsel during both phases of trial, and the court’s decision not to order a presentence investigation. After reviewing each of these issues and the pertinent law, counsel concludes that no errors of arguable merit are shown. See Wilson, 955 S.W.2d at 698.

CONCLUSION

      We have reviewed the record and agree with counsel that none of the issues considered reveals error of arguable merit. Id. Furthermore, the evidence is legally and factually sufficient to uphold the judgment and no other errors of arguable merit are shown. Accordingly, we grant counsel’s motion to withdraw and affirm the judgment. Id.

                                                             FRANK G. McDONALD

                                                             Chief Justice (Retired)

Before Chief Justice Davis

      Justice Vance and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed December 9, 1998

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