Jamarcus Markray v. State ( 2018 )

NO. 12-17-00002-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JAMARCUS MARKRAY, § APPEAL FROM THE 258TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § POLK COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Jamarcus Markray appeals his conviction for third degree felony possession of a
controlled substance. 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). Appellant filed a pro se response. We affirm.
BACKGROUND
Appellant was charged by indictment with possession of one gram or more but less than
four grams of methamphetamine. He pleaded “not guilty,” and the matter proceeded to a jury
trial. Ultimately, the jury found Appellant “guilty” as charged and assessed his punishment at
imprisonment for ten years. This appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant’s counsel filed a brief in compliance with Anders v. California and Gainous v.
State. Appellant’s counsel relates that he has reviewed the record and found no arguable
grounds for appeal. In compliance with High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App.
[Panel Op.] 1978), Appellant’s brief contains a professional evaluation of the record
demonstrating why there are no arguable grounds to be advanced. 1
Appellant contends in his pro se response that (1) he did not knowingly possess the
methamphetamine, (2) the State used unrelated evidence to convict him, (3) the arresting officer
perjured himself, and (4) the evidence connecting him to the methamphetamine is insufficient.
When faced with an Anders brief and a pro se response by an appellant, an appellate
court can either (1) determine that the appeal is wholly frivolous and issue an opinion explaining
that it has reviewed the record and finds no reversible error or (2) determine 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. Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
CONCLUSION
After conducting an independent examination of the record, we find no reversible error
and conclude that the appeal is wholly frivolous. See id. Accordingly, we affirm the judgment
of the trial court.
As required by Anders and Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.
1991), Appellant’s counsel has 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 and now grant counsel’s motion for leave to withdraw.
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, 252 S.W.3d at 411 n.35.
Should Appellant wish to seek review of these cases by the Texas Court of Criminal Appeals, he
must either retain an attorney to file a petition for discretionary review on his behalf or he must
file a pro se petition for discretionary review. Any petition for discretionary review must be filed
within thirty days from the date of this court’s judgment or the date the last timely motion for
rehearing was 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.
1
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, and informed Appellant of his right to file a pro se
response. 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). We find no indication in the record that Appellant’s
counsel took concrete measures to facilitate Appellant’s review of the appellate record in accordance with Kelly, but
there is indication that Appellant reviewed the appellate record and filed a pro se response thereafter. See id.
2
P. 68.3(a). Any petition for discretionary review should comply with the requirements of Rule
68.4 of the Texas Rules of Appellate Procedure. See In re Schulman, 252 S.W.3d at 408 n.22.
Opinion delivered July 31, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JULY 31, 2018
NO. 12-17-00002-CR
JAMARCUS MARKRAY,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 258th District Court
of Polk County, Texas (Tr.Ct.No. 24,317)
THIS CAUSE came to be heard on the appellate record and briefs 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.