Jamarcus Markray v. State

• Court: Court of Appeals of Texas
• Decided: July 31, 2018
• Docket: 12-17-00002-CR
• Status: Published

Opinion

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

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.