Jeffery Duane Merritt v. State

• Court: Court of Appeals of Texas
• Decided: April 22, 2008
• Docket: 06-07-00196-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-07-00196-CR ______________________________

JEFFERY DUANE MERRITT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Sixth Judicial District Court Lamar County, Texas Trial Court No. 20864

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION

Jeffery Duane Merritt was convicted, on a guilty plea subject to a plea bargain, to possession

with intent to deliver a controlled substance (methamphetamine), in an amount of more than four

grams but less than 200 grams, in a drug-free zone. In this case, the trial court sentenced Merritt to

forty years' imprisonment, to run consecutive to a federal sentence. Merritt was also convicted of

two other offenses, both of which are also before this Court in separate appeals.1 Although the case

was a plea bargain, Merritt asked the trial court for permission to appeal the imposition of

consecutive sentences as opposed to concurrent sentences. The trial court granted permission to

appeal that issue.

Merritt was represented by appointed counsel at trial and by different appointed counsel on

appeal. Merritt's appellate attorney has filed a brief in which he concludes that, after a review of the

record and the related law, this appeal is frivolous and without merit.

Appellate counsel summarizes the issue in his brief and states that he finds no error preserved

for appeal that could be successfully argued. The brief contains a professional evaluation of the

record. This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State,

813 S.W.2d 503 (Tex. Crim. App. 1991); and High v. State, 573 S.W.2d 807 (Tex. Crim. App.

[Panel Op.] 1978).

1 See Merritt v. State, cause numbers 06-07-00197-CR and 06-07-00198-CR.

2 Counsel mailed a copy of the brief to Merritt February15, 2008, informing Merritt of his right

to examine the entire appellate record and to file a pro se response. Counsel simultaneously filed

a motion with this Court seeking to withdraw as counsel in this appeal. This Court notified Merritt

that any pro se response was due on or before March 17, 2008. Merritt has not filed a response, nor

has he requested an extension of time in which to file such a response.

Merritt has been granted the limited right to appeal the trial court's decision to impose

consecutive sentences rather than concurrent sentences. In this case, Merritt's sentence is to run

consecutive to a federal sentence. However, Texas law permits trial courts to impose Texas

sentences consecutive to federal sentences. Cook v. State, 824 S.W.2d 634 (Tex. App.—Dallas

1991), pet. ref'd, 828 S.W.2d 11 (Tex. Crim. App. 1992). Our review has not revealed any reversible

error.2

2 Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel's request to withdraw from further representation of Merritt in this case. No substitute counsel will be appointed. Should Merritt wish to seek further review of this case by the Texas Court of Criminal Appeals, Merritt must either retain an attorney to file a petition for discretionary review 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 either this opinion or the last timely motion for rehearing that was overruled by this Court. See TEX . R. APP . P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case. See TEX . R. APP . P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX . R. APP . P. 68.4.

3 We affirm the judgment of the trial court.

Josh R. Morriss, III Chief Justice

Date Submitted: April 17, 2008 Date Decided: April 22, 2008

Do Not Publish