DocketNumber： 09-06-00289-CR
Filed Date： 8/29/2007
Status： Precedential
Modified Date： 9/10/2015
Chad Allen Keaton pled guilty to possession of a controlled substance (methamphetamine) in an amount less than one gram and to possession of a dangerous drug (carisoprodol) while in a correctional facility. A jury assessed punishment of two years of confinement for the methamphetamine possession and twenty years for the carisoprodol possession in a correctional facility. The sentences are to run concurrently. In a pro se response to his counsel's Anders brief, Keaton asks for a new trial on punishment.
After Keaton pled guilty to the two offenses and "true" to enhancement allegations of two prior felony convictions, the State presented its punishment phase evidence consisting of various exhibits and testimony from law enforcement officials, an assistant county attorney, a forensic scientist and a Department of Public Safety secretary. Two officers testified concerning the charged offenses. Trooper Nathan Pierce stated he stopped Keaton for speeding on March 30, 2005. During the traffic stop, Pierce discovered there was a warrant out for Keaton and arrested him. Pierce conducted a search incident to arrest and found a silver spoon, zig-zag rolling papers, and a green leafy substance he believed to be marijuana. The residue on the silver spoon testified positive for a trace of methamphetamine. The officer brought Keaton to jail. Deputy Trousdale testified that while Keaton was removing his socks during a change of clothes at the jail, a round, white pill fell to the floor. The pill tested positive for carisoprodol. Also admitted into evidence were seven prior misdemeanor convictions and one felony conviction.
Keaton's appellate counsel filed a brief that presents counsel's professional evaluation of the record and concludes the appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). Keaton filed a pro se response brief raising the following issues: the admissibility of evidence regarding an allegedly racist tattoo; the alleged violation of Keaton's Fifth Amendment right to remain silent; an allegation of false testimony; the State's failure to give notice, after defendant's request, of the State's intent to use extraneous offense/bad acts evidence; the admission of allegedly irrelevant evidence in violation of the double jeopardy prohibition; the asserted involuntariness of his guilty plea as a result of trial counsel's incorrect advice; and trial counsel's ineffective assistance by, among other things, failing to object to the State's lack of notice on extraneous offenses.
The State responds that the record does not support the appellant's claims, and error was not preserved or is harmless. Ineffective assistance of counsel allegations must be firmly founded in the record, and the record must affirmatively demonstrate the meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
The Court of Criminal Appeals directs that we not address the merits of issues raised in Anders briefs or pro se responses. Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). An appellate court may determine either (1) "that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error," or (2) "that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues." Id.
We have determined that this appeal is wholly frivolous. We have independently examined the clerk's record and the reporter's record, and find no arguable issues to support an appeal. See id. Therefore, appointment of new counsel to re-brief the appeal is unnecessary. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Keaton is free to file a petition for discretionary review raising error by this Court in the instant appeal. (1) See Bledsoe, 178 S.W.3d at 827.
We affirm the trial court's judgments in trial cause numbers CR25622 and CR25623.
AFFIRMED.
DAVID GAULTNEY
Justice
Submitted on May 8, 2007
Opinion Delivered August 29, 2007
Do Not Publish
Before McKeithen, C.J., Gaultney and Horton, JJ.
1. While appellant has a right to file a petition for discretionary review with the Court
of Criminal Appeals, review is not a matter of right. Bledsoe, 178 S.W.3d at 827 n.6 (citing
Tex. R. App. P. 66.2; Tex. Const. Art. V, §5(b)).