Kenneth Geal Avery v. State

• Court: Court of Appeals of Texas
• Decided: January 22, 2004
• Docket: 07-03-00361-CR
• Status: Published

Opinion

NO. 07-03-0361-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JANUARY 22, 2004 ______________________________

KENNETH GEAL AVERY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 252ND DISTRICT COURT OF JEFFERSON COUNTY;

NO. 87,126; HON. LARRY GIST, PRESIDING _______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

Appellant Kenneth Geal Avery appeals his conviction for possession of a controlled

substance. His court-appointed counsel has moved to withdraw after filing a brief pursuant

to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and

representing he has searched the record and found no arguable grounds for reversal. The

motion and brief indicate that appellant was informed of his rights to review the appellate

record and file his own brief. So too did we inform appellant that any pro se response or

brief he cared to file had to be filed by December 10, 2003. Upon the request for more

time, the deadline was extended to January 14, 2004. To date, appellant has filed no pro

se response or brief. Nor has he moved for another extension. In compliance with the principles enunciated in Anders, appellate counsel discussed

one potential area for appeal which concerned an objection regarding the prosecutor

testifying for the State’s witness. However, appellate counsel points out that trial counsel

did not request an instruction nor a mistrial; thus, the issue was not preserved for review.

Furthermore, appellate counsel discusses each phase of the trial, i.e. indictment, pretrial

motions, the stipulation of evidence and sentencing, and thereafter concluded that no

issues were presented for appeal.

So too have we conducted an independent review of the record to determine

whether there existed reversible error and found none. See Stafford v. State, 813 S.W.2d

503, 511 (Tex. Crim. App. 1991) (requiring us to conduct an independent review). Appellant

was stopped while riding his bicycle for failing to obey the traffic laws. During the attempt

to stop appellant, the arresting officers observed appellant throw a metallic object to the

ground. After retrieving the object, which was a pill bottle, the officers found “crack”

cocaine inside. At trial, appellant stipulated to the chain-of-custody and that the bottle

contained over one gram of cocaine but less than four grams. There were no objections

to the jury charge, and we have found no egregious harm caused by anything in the

charge. Furthermore, the punishment assessed, seven years in prison, was within that

prescribed by law. TEX . PEN . CODE ANN . §12.42(a)(3) (Vernon 2003).

Accordingly, counsel's motion to withdraw is granted, and the judgment of the trial

court is affirmed.

Brian Quinn Justice Do not publish.