NO. 07-97-0374 -CR 07-97-0375-CR 07-97-0376-CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A MAY 17, 2002

______________________________ JOE LEE MAC KEY, APP ELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 140 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 97-424935; 97-424936; 97 -424937; HONORA BLE JIM BOB DA RNELL, JU DGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. Appellant Joe Lee Mac keyappeals from three convictions for delivery of cocaine, a controll ed substance. W e affirm the judgments.
In May of 1997, a Lubbock County grand j ury indicted appellant on three separate charges of delivery of cocaine, a controlled substance. The indictm ent in Cause No. 97- 424935 wasfor delivery of less than one gram on Septem ber 17, 1996. The indictm ent1 A fourth charge aga inst appellant forpossession of cocaine w ith intent to deliver

wascon solid ate d an d tr ied w ith t he t hre e ch arg es a ddr ess ed b y th is opinion. The fourth conviction is not addressed by this opinion, but is the subj ect of a separate opinion in our cause No. 07-97-0373-CR

. 2 in Cause No. 97-424936 was for delivery of less than four gram s but at least one gramon A u gust 19, 1996. The indictm ent in Cause No. 97-424937 w as for delivery of less than four grams but at least one gramon Sep tem ber 26, 1 997. Thecaseswer e consolidated and tried toge ther. 1 The jury f ou nd hi m g uilty on all three charges. The jury ass essed punishment

in the three m atters now under consideration as follows: (1) in Cause No. 97- 424935, our appellate cause num ber 07-97-0374-CR, confinem ent in the Texas Departm entof

Criminal Justice, Institutional Division, for 15 years; (2) in Cause No. 97- 424936, our appellate cause num ber 07-97-0375-CR, confinem ent in the Texas Departm entof Criminal Justice, Institutional Division, for 65 years; (3) in Cause No. 97- 424937, our appellate cause num ber 07-97-0376-CR, confinem ent in the Texas Department of Criminal Justi ce, Instituti onal Di vision , for 65 years. App ointed cou nse l for app ellan t ha s fi led aMo tion to Withd raw and a B rief

in Suppor t th ere of a s totheapp eals . I n su ppo rt o f th e m otio n tow ithd raw , co uns el h a s certified that, in compliance w ith Anders v. Cal ifor nia , 386 U.S. 73 8, 744-45, 87 S.C t. 1396, 18 L.Ed.2d 493 (1967), t he record hasbee n dilig ent ly re view ed a nd t hat

in the opinion of
cou nse l, therecord ref lects norev ers ible e rro r or gro und s up on w hic h a non-frivolous appeal can arguably be predicated. Counsel thus concludes that the appeal is frivo lous.2 See Batson v. Kentucky , 476 U.S. 79 , 106 S.Ct. 1712, 90 L.Ed.2d 69(1986). 3 In reaching the conclusion that the appeal is w ithout me rit, counsel advances three pos sibleiss ues : (1 ) w het her thetria l cou rt e rre d in overruli ng appell ant’s challenges for
cause of m embers

of the j ury venire, (2) whe th er the trial court erred in overruling appell ant’s challe nge to the State’s use of two of its p er emptory challenge s to strike African-Am erican me mbersof the venire, and (3) w hether a fatal variance existed bet ween enhancem entallegations of the indictment and tr ial proofwhen the indictment did not allege a final date for

conviction of the enhancem ent offenses. C ounsel has referenced,
ana lyzed and discussed the record of the jury venire voi

r di re proceedings, the Ba tson 2 hearing concer ning the S tate’s reasons for its p erem ptory c hallenges totwo Afri can Am erican veniremem bers, and the trial record. Counsel has likewise di scussed w hy, under the controlling authorities, there is no reversible error in the tri al court’s judgm ents. See High v. State , 573 S.W.2d 807, 813 (Tex.Crim .App. 1978).
Counsel has certified that a copy of t he Andersbrief and Motion to W ithdraw have been forwarded to appellant, and that counsel has appropr iate ly advised appellant of appell ant’s right to review the record an d fi l e a response to couns el’s mo tion and brief. Appellant has filed a response to counsel’s m otion and brief. In his response, appellant urges the issues identified by his counsel in the Anders br i ef , b ut si mp ly advances the position that the trial court erred in its rulings.4

The State has filed a brief in response to the brief of appellant’s cou nsel and appell ant’s pro se response to his counsel’s brief. The State concludes that the appeal presents no reversible error.
We have m ade an independent exam ination of the record to determ ine whether there are any arguable grounds m eriting appeal. See Penson v. Ohio , 488 U.S. 75 , 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. S tate , 813 S.W.2d 503, 511 (Tex.C rim.App. 1991). We have found no such grounds. We agree that the appeal is without m erit. Accordingl y, cou nse l’s Mo tion to Withd raw is granted. The judgm ents of the trial court are affirm ed.

Phil Johnson Justice

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