Lincoln Grant v. State ( 2004 )

  NUMBER 13-03-507-CR

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG   

LINCOLN GRANT,                                                                       Appellant,

v.

THE STATE OF TEXAS,                                                             Appellee.

On appeal from the 24th District Court of Victoria County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Yañez, and Castillo

Opinion by Justice Yañez

          Appellant, Lincoln Grant, challenges his conviction for unlawful delivery of a controlled substance. We affirm.  

          On October 31, 2002, Grant was indicted. On June 4, 2003, Grant was found guilty by a jury. The jury found the enhancement paragraphs to be true and assessed punishment at twelve years confinement and a $6,000 fine. On June 10, 2003, the trial court certified that this case “is not a plea-bargain case, and the defendant has the right of appeal.” See Tex. R. App. P. 25.2(a)(2). On August 27, 2003, Grant filed his notice of appeal.  

          Court-appointed counsel on appeal, Keith S. Weiser, has filed a brief in which he has concluded that this appeal has no meritorious issues to bring forward for review. See Anders v. California, 386 U.S. 738, 744 (1967). The brief meets the requirements of Anders as it presents a professional evaluation of why there are no arguable grounds for advancing an appeal. Lindsey v. State, 902 S.W.2d 9, 11 (Tex. App.–Corpus Christi 1995, no pet.).

          Counsel states in his brief that he has served a copy of his brief on appellant and has advised him by letter of his opinion that the appeal is without merit but that appellant has the right to review the record and file a pro se brief. In the intervening four months, no pro se brief has been filed.

          In Penson v. Ohio, 488 U.S. 75, 80 (1988), the Supreme Court discussed the responsibilities of an appellate court upon receiving a “frivolous appeal” brief. The Court stated: “once the appellate court receives this brief, it must then itself conduct ‘a full examination of all the proceeding[s] to decide whether the case is wholly frivolous.’” Id. (quoting Anders, 386 U.S. at 744).

          The record includes testimony from an undercover police officer who witnessed Grant organize a purchase of less than one gram of crack cocaine for one hundred dollars. The testimony reflects that the officer handed Grant the money, Grant took it, and then he gave the officer the cocaine. Another drug dealer present during this purchase testified that he gave Grant the cocaine that Grant exchanged with the officer.

          After carefully reviewing the appellate record and counsel’s brief, we find nothing in the record that might arguably support the appeal. We agree with counsel that the appeal is wholly frivolous and without merit.

          An appellate court may grant a motion to withdraw from counsel in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (noting that Anders brief should be filed with request for withdrawal from case). Accordingly, counsel has requested to withdraw from further representation of Grant. We grant counsel’s motion to withdraw and order counsel to notify appellant of the disposition of this appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25. 27 (Tex. Crim. App. 1997).           The judgment is affirmed.

                                                               LINDA REYNA YAÑEZ

                                                                           Justice

Do not publish. Tex. R. App. P. 47.2(b).

Opinion delivered and filed this the

17^th day of June, 2004.