Kenneth Wayne Rickaby v. State

• Court: Court of Appeals of Texas
• Decided: February 24, 2009
• Docket: 03-08-00636-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-08-00636-CR

Kenneth Wayne Rickaby, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT NO. 13,019, HONORABLE CHARLOTTE HINDS, JUDGE PRESIDING

MEMORANDUM OPINION

Following a bench trial, appellant Kenneth Wayne Rickaby was convicted of

possessing less than one gram of methamphetamine. See Tex. Health & Safety Code Ann. § 481.115

(West 2003). The trial court assessed punishment at two years in state jail.

At 3:45 a.m. on the day in question, Bastrop County Sheriff’s officers responded to

a report of a suspicious pickup truck parked in a residential cul-de-sac. According to the report, a

man was slumped over the steering wheel of the truck. After locating this vehicle, Deputy Celeste

Arriaga attempted to rouse the man by tapping on the window with her flashlight. The man,

identified as appellant, eventually responded. Arriaga testified that appellant appeared “dazed and

confused,” and he “just kind of sat there.” Arriaga asked appellant to step out of the truck. As

appellant began to comply with this request, Sergeant A. J. Molinari noticed that appellant was trying

to conceal a small metal canister under his left thigh. After appellant got out of the truck, Molinari could see the canister lying in the

driver’s seat. He asked appellant what was in the canister, and appellant told him that he did not

know. Molinari testified that he asked for and was given appellant’s consent to open the canister.

Inside, the officer found a small plastic bag containing a white powder that proved to be

methamphetamine.

Appellant moved to suppress the methamphetamine on the ground that he did not

voluntarily consent to the search of the metal canister. The court overruled the motion. Then, after

hearing additional testimony, the court adjudged appellant guilty.

Appellant’s court-appointed attorney has filed a motion to withdraw supported by a

brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of

Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record

demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio,

488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State,

516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972);

Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Appellant received a copy of counsel’s

brief and was advised of his right to examine the appellate record and to file a pro se brief. No pro se

brief has been filed.

We have reviewed the record and counsel’s brief and agree that the appeal is frivolous

and without merit. We find nothing in the record that might arguably support the appeal. Counsel’s

motion to withdraw is granted.

2 The judgment of conviction is affirmed.

__________________________________________

Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: February 24, 2009

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