Opinion issued March 29, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00298-CR
DONALD DAVIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 1015303
MEMORANDUM OPINION
A jury convicted appellant, Donald Davis, of the first-degree felony offense of possession with intent to deliver heroin weighing more than four grams and less than two hundred grams.[1] The trial court assessed punishment at thirty-five years’ confinement. Davis’s counsel on appeal has submitted a brief stating his professional opinion that the appeal is without merit and that there are no arguable grounds for reversal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Davis filed a pro se response. In three issues, Davis contends (1) the evidence is legally and factually insufficient to support the jury’s finding that he possessed and intended to deliver seventy-three grams of heroin recovered by police from a McDonald’s parking lot, (2) his trial counsel was ineffective, and (3) the trial court erred in admitting a police officer’s testimony that he observed Davis throw a baggie containing heroin from the driver’s side window of his truck into a McDonald’s parking lot. We have reviewed the record and, having found no reversible error, we affirm Davis’s conviction.
Background
On February 2, 2005, an informant notified Officer F. Wood that a heroin transaction would occur around 11:00 a.m. at a Whataburger restaurant located near the 610 Loop and West 18th Street in Houston. The informant provided Officer Wood with a description of the suspect and his pickup truck.
Officer Wood and several members of his narcotics squad drove to the designated location and began surveillance. At 11:20 a.m., they observed a male in a light blue pickup truck matching the informant’s description exit the Whataburger parking lot and pull into an adjacent strip center. The occupant, later identified as Davis, exited the truck and entered a car stereo store. While Davis was inside the store, Officer Wood checked the truck’s license number and discovered that the first name of the owner matched the first name the informant had given him.
Davis emerged from the store alone, got into his truck, and turned onto the 610 Loop. Officer Wood and his squad followed in unmarked police cars. After several minutes of erratic driving, Davis abruptly exited the freeway and cut through a McDonald’s parking lot. Officer F. Rodriguez followed Davis into the parking lot and saw him throw a ball of white paper or tissue out the driver’s side window of his truck and then speed away. Officer Rodriguez radioed to the other officers that they should continue following Davis while he stopped to retrieve what Davis had thrown from his window. Upon close examination, Rodriguez discovered that Davis had disposed of a ziplock baggie, wrapped in paper, containing what smelled and looked like black tar heroin. Subsequent forensic analysis confirmed that the substance was black tar heroin weighing seventy-three grams. Rodriguez notified the officers who were pursuing Davis that he had recovered heroin.
At that point, after seeing Davis commit several traffic violations, and after learning that Davis had thrown heroin from his truck, Officer Wood radioed for a marked patrol car to stop him. Officers handcuffed Davis and discovered that he was carrying cash in the amount of $1,058 in his front pants pocket. They did not find any contraband in his truck or on his person.
Davis testified that he had loaned $100 to a friend and that the two agreed to meet at a car stereo store so that his friend could pay him back. When Davis arrived at the store, his friend came outside and entered Davis’s truck on the passenger’s side to hand him the money. His friend then got into his own car and drove away, and Davis did the same. Davis testified that he was carrying $1,058 in his pocket because he had just cashed his paycheck. He denied throwing heroin from his truck.
Anders Procedure
The brief submitted by Davis’s court-appointed counsel states his professional opinion that there are no arguable grounds for reversal on appeal and that any appeal would, therefore, lack merit. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Counsel’s brief meets the minimum Anders requirements by presenting a professional evaluation of the record and stating why there are no arguable grounds for reversal on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Counsel sent a copy of the brief to Davis, requested permission to withdraw from the case, and notified Davis of his right to review the record and to file a pro se response.
When we receive an Anders brief from a defendant’s court-appointed attorney who asserts that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—determines, after full examination of proceedings, whether case is “wholly frivolous”); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). In conducting our review, we consider any pro se response that the defendant files to his appointed counsel’s Anders brief. See Bledsoe v. State, 178 S.W.3d 824, 826–28 (Tex. Crim. App. 2005).
Our role in this Anders appeal, which includes reviewing the pro se response by Davis, is limited to determining whether arguable grounds for appeal exist. See id. at 827. If we determine that arguable grounds for appeal exist, we abate the appeal and remand the case to the trial court to allow the court-appointed attorney to withdraw. See id. The trial court then either appoints another attorney to present all arguable grounds for appeal or, if the defendant wishes, allows the defendant to proceed pro se. See id. We do not rule on the ultimate merits of the issues raised by Davis in his pro se response. See id. If we determine that there are arguable grounds for appeal, Davis is entitled to have new counsel address the merits of the issues raised. See id. “Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised.” Id.
If, on the other hand, we determine, from our independent review of the entire record, that the appeal is wholly frivolous, we may affirm the trial court’s judgment by issuing an opinion in which we explain that we have reviewed the record and have found no reversible error. See id. at 826–28. The holding that there are no arguable grounds for appeal is subject to challenge by Davis by a petition for discretionary review filed in the Court of Criminal Appeals. Id. at 827 & n.6.
In accordance with Anders and Bledsoe, we have reviewed the record, Davis’s appointed counsel’s Anders brief, and Davis’s pro se response to that brief and conclude that no reversible error exists. Having reached that conclusion, we affirm the judgment of the trial court and grant Davis’s appointed counsel’s motion to withdraw.[2]
Conclusion
We affirm the judgment of the trial court and grant appointed counsel’s motion to withdraw.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
Do not publish. Tex. R. App. P. 47.2(b).
[1] Tex. Health & Safety Code Ann. §§ 481.102(2), 481.112(a), (d) (Vernon 2003 & Supp. 2006).
[2] Appointed appellate counsel still has a duty to inform Davis of the result of this appeal and that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 827 & n.6 (Tex. Crim. App. 2005); Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997); Stephens v. State, 35 S.W.3d 770, 771–72 (Tex. App.—Houston [1st Dist.] 2000, no pet.).