Full Opinion (html_with_citations)

                                  NO. 12-23-00124-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 STEVEN LEON MAYBERRY,                            §      APPEAL FROM THE 8TH
 APPELLANT

 V.                                               §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                         §      RAINS COUNTY, TEXAS

                                  MEMORANDUM OPINION
                                      PER CURIAM
       Steven Leon Mayberry appeals his conviction for 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).
We affirm.


                                         BACKGROUND
       At approximately midnight on March 8, 2022, a Rains County Sheriff’s Department deputy
stopped Appellant’s vehicle for suspicious driving near several closed businesses. Appellant, the
driver and sole occupant of the vehicle, appeared to have difficulty locating his identification.
After a few minutes of searching, he exited the vehicle, and the deputy observed a glass pipe in
plain view near the driver’s seat. Appellant admitted the pipe was “a meth pipe,” but denied having
any other illegal substances in the car. After a search the deputy was unable to locate any other
illegal items inside the vehicle. Nevertheless, the deputy arrested Appellant for possession of a
controlled substance, namely the residue in the pipe. 1
         The deputy did not test the residue at the scene. At the ensuing trial, he testified he relied
solely on Appellant’s representation that the pipe was “a meth pipe” to justify the arrest. A Texas
Department of Public Safety forensic scientist also testified that she was able to scrape 0.08 grams
of a substance containing methamphetamine from inside the pipe. Appellant did not object to this
testimony or contest the forensic scientist’s conclusion that the pipe contained methamphetamine.
At the conclusion of the trial, the jury found Appellant “guilty” of the offense.
         Appellant hoped for community supervision, so he requested that the trial court assess his
punishment. At the punishment hearing, both the State and defense counsel requested that
Appellant be placed on community supervision, even though this recommendation was not the
result of a plea agreement. The trial court ultimately sentenced Appellant to two years of
confinement in a state jail facility, but suspended the sentence and placed him on community
supervision for a period of five years. As a condition of community supervision, the trial court
ordered that Appellant attend and complete the Substance Abuse Felony Punishment Facility
(SAFPF) program. 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 states that he diligently reviewed the appellate record and is of the
opinion that the record reflects no reversible error and that there is no error upon which an appeal
can be predicated. He further relates that he is well-acquainted with the facts in this case. In
compliance with Anders, Gainous, and High v. State,
573 S.W.2d 807
 (Tex. Crim. App. [Panel
Op.] 1978), Appellant’s brief presents a chronological summation of the procedural history of the
case and further states that Appellant’s counsel is unable to raise any arguable issues for appeal. 2
We likewise have reviewed the record for reversible error and found none.


         1
             See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West Supp. 2023).
         2
           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, informed Appellant of his right to file a pro se response, and took
concrete measures to facilitate Appellant’s review of the appellate record. See Kelly v. State,
436 S.W.3d 313, 319
(Tex. Crim. App. 2014). Appellant was given time to file his own brief. The time for filing such a brief has expired,
and no pro se brief was filed.


                                                          2
                                                  CONCLUSION
         As required by Stafford v. State,
813 S.W.2d 503
 (Tex. Crim. App. 1991), Appellant’s
counsel 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. Having
done so and finding no reversible error, we grant Appellant’s counsel’s motion for leave to
withdraw and affirm the trial court’s judgment. As a result of our disposition of this case,
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 this case 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 petition for
discretionary review pro se. Any petition for discretionary review must be filed within thirty days
from either the date of this opinion or the date that the last timely motion for rehearing was
overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be
filed with the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition for
discretionary review should comply with the requirements of Texas Rule of Appellate Procedure
68.4. See In re Schulman,
252 S.W.3d at 408
 n.22.


Opinion delivered December 20, 2023.
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

                                        DECEMBER 20, 2023


                                         NO. 12-23-00124-CR


                                  STEVEN LEON MAYBERRY,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                  Appeal from the 8th District Court
                              of Rains County, Texas (Tr.Ct.No. 6343)

                       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.