Alfred Windon Scott v. State ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00109-CR

Alfred Windon Scott,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 361st District Court

Brazos County, Texas

Trial Court No. 06-01712-CRF-361

abatement ORDER

The State has filed a motion to abate this appeal.  We will grant it.

The notice of appeal in this cause was filed on April 4, 2007, and the clerk’s record was filed on April 26, 2007.  A docketing statement has not been filed.

The reporter’s record has not been filed.  The State’s motion asserts that Kaetheryn Kyriell, the court reporter for the second and third days of trial, has not received a request for the transcription of the reporter’s record.

The Court abates this cause to the trial court with instructions to hold a hearing to determine: (1) why a docketing statement has not been filed on Appellant’s behalf; (2) why the reporter’s record has not been requested and whether it will be requested; (3) whether Appellant’s attorney has abandoned the appeal or is providing effective assistance; (4) whether Appellant still desires to proceed with the appeal; and (5) whether Appellant desires to represent himself.  See Tex. R. App. P. 38.8(b)(2); Fewins v. State, 170 S.W.3d 293 (Tex. App.—Waco 2005, order).

The trial court shall conduct the hearing within thirty days after the date of this order.  The trial court clerk and court reporter shall file supplemental records within forty-five days after the date of this order.  See Fewins, 170 S.W.3d at 296-97.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray would grant the State’s motion and thus limit the issues for the hearing to the issues raised in the motion.)

Appeal abated

Order issued and filed April 2, 2008

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yle="font-family: 'CG Times', serif">      The appellant, Donivan Ray Perkins, pled guilty to the offense of possession of less than four grams of cocaine, and the trial court assessed an enhanced punishment of five years’ incarceration in the Institutional Division of the Texas Department of Criminal Justice. See Tex. Health & Safety Code Ann. § 481.115(c) (Vernon Supp. 1998).

      Alleging that an appeal from Perkins’ conviction would be frivolous, Perkins’ attorney filed an Anders brief and a motion to withdraw on November 3, 1997. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). In accordance with this court’s recent opinion in Wilson v. State, we notified Perkins on November 12, 1997, that he had thirty days in which to file a pro-se response stating why his appeal is meritorious. No. 10-97-090-CR, slip op. at 4, 1997 WL 700877, at * 4 (Tex. App.— Waco November 12, 1997, no pet.). Those thirty days have passed and Perkins has not filed any response. It is therefore our duty to conduct an independent review of the record to determine if Perkins’ appeal is without merit and to assess whether Perkins’ attorney complied with the requisite procedures as articulated in Anders, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400.

      Because Perkins pled guilty to the offense of possession of cocaine, he is limited as to the issues he may complain about on appeal. See Tex. R. App. P. 25.2(b)(3). Upon review of the record, we agree with Perkins’ attorney that the only potentially arguable point on appeal is the legality of the seizure of the crack cocaine at the time of Perkins’ arrest. However, we conclude that the trial court did not err in finding that the seizure of the cocaine was legal and denying Perkins’ motion to suppress.

      Perkins was arrested on March 25, 1996 for possession of less than four grams of crack cocaine. See Tex. Health & Safety Code Ann. § 481.115(c). Perkins’ vehicle was parked on an “unapproved surface” along a road in Dallas when a Dallas police officer stopped to investigate. When the officer spotlighted Perkins’ vehicle, Perkins emerged and proceeded to “nonchalantly” drop a white object. The officer approached Perkins and the vehicle, and when he looked inside the vehicle, he saw a razor blade with white residue. The officer then proceeded to pick up the white container Perkins had dropped and found cocaine inside. The officer arrested Perkins.

      Prior to trial, Perkins’ attorney filed a motion to suppress any evidence obtained as a result of Perkins’ arrest. After a hearing, the trial judge denied the motion. Perkins then pled guilty to the charged offense and “true” to an enhancement paragraph.

      The record reflects that the crack cocaine was in plain view of the officer when he approached the vehicle. The plain view doctrine requires: (1) the seizing law enforcement officer to be lawfully in the place where he observes the contraband, and (2) the item seized must appear to be evidence associated with a crime. Ramos v. State, 934 S.W.2d 358, 365 (Tex. Crim. App. 1996), cert. denied, — U.S. —, 117 S. Ct. 1556 (1997); State v. Haley, 811 S.W.2d 597, 599 (Tex. Crim. App. 1991). The arresting officer testified that Perkins’ vehicle was already parked when the officer stopped to investigate. When Perkins exited the vehicle, the officer witnessed him drop a white object which the officer later discovered contained cocaine. The officer also saw a razor blade with white residue on it located in the driver’s seat and, based on his experience as a police officer, he believed the residue to be cocaine.

      Based on the facts adduced during the suppression hearing, it is apparent that Perkins was not detained by the officer, but was voluntarily, albeit illegally, parked on the side of the road when the officer approached him. Consequently, we cannot conclude that the trial court abused its discretion by denying Perkins’ motion to suppress when the officer made no intrusion upon Perkins but merely stopped to investigate an illegally parked vehicle. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

      Having so determined and concluding that Perkins’ attorney has fulfilled her duties under Anders, we will grant her motion to withdraw as Perkins’ attorney and affirm Perkins’ conviction. Johnson v. State, 885 S.W.2d 641, 646 (Tex. App.-Waco 1994, pet. ref’d).

      The judgment is affirmed.

                                                                               BOBBY L. CUMMINGS

                                                                               Justice

Before Chief Justice Davis,

           Justice Cummings, and

           Justice Vance

Affirmed; motion to withdraw granted

Opinion issued and filed January 21, 1998

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