Cody Gene Berry v. State ( 2010 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00163-CR
______________________________
CODY GENE BERRY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th Judicial District Court
Lamar County, Texas
Trial Court No. 19,579
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Cody Gene Berry appeals from the revocation of his community supervision. Berry was
convicted of possession of less than one gram of methamphetamine in a drug-free zone. Upon
revocation, he was sentenced to five years’ imprisonment and a $1,000.00 fine. Berry was
represented by appointed counsel at the revocation hearing and on appeal.
Berry’s attorney on appeal has filed a brief which discusses the record and reviews the
proceedings in detail. Counsel has thus provided a professional evaluation of the record
demonstrating why, in effect, there are no arguable grounds to be advanced. This meets the
requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503
(Tex. Crim. App. 1981); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).
Counsel mailed a copy of the brief to Berry on February 16, 2010, informing Berry of his
right to file a pro se response and of his right to review the record. Counsel has also filed a motion
with this Court seeking to withdraw as counsel in this appeal. Berry has neither filed a pro se
response, nor has he requested an extension of time in which to file such response.
We have determined that this appeal is wholly frivolous. We have independently
reviewed the clerk’s record and the reporter’s record, and we agree that no arguable issues support
an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
In a frivolous appeal situation, we are to determine whether the appeal is without merit and
is frivolous, and if so, the appeal must be dismissed or affirmed. See Anders, 386 U.S. 738.
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We affirm the judgment of the trial court, and grant counsel’s motion to withdraw.1
Bailey C. Moseley
Justice
Date Submitted: April 29, 2010
Date Decided: April 30, 2010
Do Not Publish
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Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request to
withdraw from further representation of Berry in this case. No substitute counsel will be appointed. Should Berry
wish to seek further review of this case by the Texas Court of Criminal Appeals, Berry must either retain an attorney to
file a petition for discretionary review or Berry must file a pro se petition for discretionary review. Any petition for
discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for
rehearing that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be
filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the
filings in this case. See TEX. R. APP. P. 68.3. 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.
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