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.   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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^[1]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.