Rakede Davis v. the State of Texas ( 2022 )

NO. 12-21-00094-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
RAKEDE DAVIS, § APPEAL FROM THE 402ND
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § WOOD COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Rakede Davis appeals his conviction for a prohibited substance in a correctional facility.
Appellant’s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S.
Ct. 1396, 18 L. Ed. 2d 493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App.
1969). We affirm.
BACKGROUND
Appellant was charged by indictment with a prohibited substance in a correctional facility
by intentionally and knowingly possessing a controlled substance, i.e., methamphetamine, while
in the Wood County Jail, a third degree felony. 1 Appellant pleaded “not guilty,” waived his right
to a jury trial, and the case proceeded to a bench trial. At trial, Deputy Delton Graves, a Wood
County Sheriff’s deputy, stated that he was on patrol on February 18, 2019, when he made a
traffic stop of a vehicle in which Appellant was the passenger. He located suspected narcotics
underneath the driver’s seat. Graves stated that this discovery led to his request to search
Appellant. According to Graves, Appellant did not consent to the search and resisted by
“actively attempt[ing] to pull away from [Deputy Graves] once [he] got one handcuff on
1
See TEX. PENAL CODE ANN. § 38.11(d)(1), (g) (West Supp. 2021).
[Appellant] when [he] went to detain [Appellant.]” During the search, Graves removed an
eyeglass holder, a red bandanna, and a red cloth from Appellant’s front left jacket pocket. The
bandanna and cloth were intertwined with a glass pipe commonly used to smoke
methamphetamine. Graves did not see any residue coming from the bandanna or the cloth nor
did he scrape any residue from the glass pipe even though it appeared to have been used. He
arrested Appellant for possession of drug paraphernalia.
A former jailer with the Wood County Sheriff’s Office testified that he recalled Appellant
at the Wood County Jail. Appellant was strip searched in the bathroom by an officer, dressed in
an orange jumpsuit, and escorted to a holding tank. The jailer searched Appellant’s clothing and,
after patting down Appellant’s jacket, he felt something hard at the bottom of the seam or lining
of the jacket. The jailer retrieved a glass pipe that was marked with a Batman logo and smiley
face. According to the jailer, that glass pipe contained a white cloudy substance. Graves also
testified that the second glass pipe had a crystal-like substance in it. A forensic scientist for the
Texas Department of Public Safety Houston Crime Lab testified that the substances found in the
glass pipe located in Appellant’s jacket in the Wood County Jail contained 0.07 grams of
methamphetamine.
Appellant testified that Graves removed two glass pipes from his jacket, one wrapped in
an orange bandanna with a Batman logo and smiley face that the officer placed on the hood of
the patrol vehicle. Appellant stated that Graves discovered another, second, glass pipe
underneath the first glass pipe in a black case with a red bandanna. Appellant did not deny
having contraband, but he denied that the contraband “[made] its way into” the Wood County
Jail.
At the conclusion of the trial, the trial court adjudged Appellant “guilty” of possession of
a prohibited substance in a correctional facility. After a sentencing hearing, the trial court
assessed Appellant’s punishment at four years of imprisonment, a $1,000.00 fine, court costs,
and reimbursement fees. 2 However, the trial court ordered that Appellant’s sentence be
suspended and that he be placed on community supervision for three years. This appeal
followed.
2
Id. § 12.34 (West 2019). An individual adjudged guilty of a third degree felony shall be punished by
imprisonment for any term of not more than ten years or less than two years and, in addition, a fine not to exceed
$10,000.00. Id.
2
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant’s counsel filed a brief in compliance with Anders and Gainous, stating that he
diligently reviewed the appellate record and is of the opinion that the record reflects no
reversible error and that there is no error upon which an appeal can be predicated. From our
review of counsel’s brief, it is apparent that counsel is well acquainted with the facts in this case.
In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App.
1978), counsel’s brief presents a chronological summation of the procedural history of the case,
and further states that counsel is unable to raise any arguable issues for appeal. 3 We have
reviewed the record for reversible error and have found none. See Bledsoe v. State, 178 S.W.3d
824, 826-27 (Tex. Crim. App. 2005).
CONCLUSION
As required by Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991),
Appellant’s counsel moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403,
407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the
merits. Having done so and finding no reversible error, Appellant’s counsel’s motion for leave
to withdraw is hereby granted, and the trial court’s judgment is affirmed. See TEX. R. APP. P.
43.2.
Appellant’s counsel has a duty to, within five days of the date of this opinion, send a
copy of the opinion and judgment to Appellant and advise him of his right to file a petition for
discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 22 S.W.3d at 411 n.35. Should
Appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, he
must either retain an attorney to file a petition for discretionary review or he must file a pro se
petition for discretionary review. See In re Schulman, 22 S.W.3d at 408 n. 22. Any petition for
discretionary review must be filed within thirty days from the date of either this opinion, or if a
motion for rehearing is filed, the date that the last timely motion for rehearing is overruled by
this Court. See TEX. R. APP. P. 68.2(a). Any petition for discretionary review must be filed with
the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary
3
In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief,
notified Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response,
and took concrete measures to facilitate Appellant’s review of the appellate record. See Kelly v. State, 436 S.W.3d
313, 319 (Tex. Crim. App. 2014). Appellant was given time to file his own brief. The time for filing such brief has
expired and no pro se brief has been filed.
3
review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate
Procedure. See TEX. R. APP. P. 68.4; In re Schulman, 22 S.W.3d at 408 n. 22.
Opinion delivered April 14, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
4
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
APRIL 14, 2022
NO. 12-21-00094-CR
RAKEDE DAVIS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 402nd District Court
of Wood County, Texas (Tr.Ct.No. 24,130-2020)
THIS CAUSE came to be heard on the appellate record and brief filed herein,
and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.