## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 18

- 00357

- CR

___________________________

On Appeal from the 355th District Court Hood County, Texas T rial Court No. CR13689

Before Sudderth, C.J.; Gabriel and Womack, JJ. Memorandum Opinion by Justice Womack 

### T OSHA 

### L

ADIACAY 

### H ARKINS 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION After hearing testimony and consid ering evidence establishing (1) that a glass pipe with resid ue tested posi tive for methampheta mine and Tosha Ladi acay Harkins ’ s DNA , and (2) that the glass pipe was among other drug paraphernalia 1 found in the
home where Harkins and her two

- month old infan t resided , a jury convicted Hark ins
of t he offenses of endangering a child and possession of l ess than one gram of a

con trolled substance . F inding the State ’ s enhance ment par agraphs true , the jury
assessed Harkins ’ s punishment at seven years ’ confin ement for each offense. See Tex. Health & Safety Code Ann. §§ 481.102(6) (providing methamphetamine is a Penalty Group 1 cont rolled substance), .115(a), ( b ) (providing posse ssion of less t han one
gram of a Pen alty Group 1 contro lled substance , including adulterants o r dilutants, is

a state jail felony); Tex. Penal Code Ann. § § 12.34(a) (providing range o f confinement
for th ird

- d egree felony is two to ten years) , .425(a) ( requ i ring that stat e jail felony
defendant , who has previo u sly been finally convicted of two state jail felony offens es , be sente nced within the range of confinement for a third

- de gree f e lony)

. The trial

co urt s entenced her accordingly.
Harki ns ’ s court

- appoin ted appellate c ounsel h as filed a motio n to withdraw as
counsel and a brief in support of that motion. Counsel ’ s brief and mot ion meet the require ments of Anders v. California by presenting a professional evaluatio n of the

1 The paraphernalia included a st raw containing remnan ts of methamphe tamine , a butan e lig hter, scales, plastic baggies, Q

- Tips ® , and a mari j uana pi pe
.3

record and demonstratin g why th ere are no arguable grounds for relief. 3 86 U.S. 738, 744, 87 S. Ct. 1396 , 1400 (1967) ; see In re Schulman , 2 52 S.W.3d 403, 406

– 1 2 (Te x.
Crim. App. 2008) (orig. proceeding) (analyz ing the effect of Anders ). Appellate
counsel noti fied Har kins of counsel ’ s motion and Anders brief and informed her of
her right to obtain the record o n appeal , to file a pro se response to counsel ’ s Anders
brie f , and to file a petition f

or discretionary rev

iew i f the judg ment is affirmed in this

court

. See Kelly v. State , 436 S.W.3d 313, 319 (Tex. Crim. App. 2014) ( specif ying in part
th at appointed counsel must notify the client regarding the motion and brief and provide the client a copy of each a nd set ting forth other requirements that co unsel

m ust satisfy to assist the client in understanding h er pro se rights and effectuating those rights and secu ring pro se acc ess to the record )

. Appella te counsel also provided to Harkins a pre pared form to request a cce ss to the record, which Harkins si gned and filed in this court on January 7, 2019. Th e clerk of the 355 th D istri ct Court in Hood C o unty, Texas , has filed with this court a
certifi cation of certified mail showi ng that a copy of the record was mailed to
Harkins 2 on January 10 , 2019

. On January 28, 2019, the package containing the
clerk ’s and reporter ’s records was retur ned to the clerk with a handwritten notation,

“ RTS

- offender refused , ” and a label dated January 24, 2019 , stating , “ RETURN T O
SENDE R

— REFU SED

— UNABL E TO FO RWARD

— RETURN TO SENDER. ”

2 The reco rd was mailed to the same address Harkins had provided to this court on January 7, 20 1 9.4

On February 13, 2019, we sent notice to Harki ns ’ s last known address informing her
that her appell ate counsel had filed a motion to withdraw and an Anders brief in support of the motion , that the trial court cl erk had notified this court that the record
had been sent to Har kins by certified ma il and had been returned to the clerk based

on Harkins ’ s refusal to accept it as noted on the package , and that she had the right to
file a pro se brief

. In t hat let ter, w e al so asked Harkins to advise the court within
fou r teen days whether s he wished to file a pro se response to her appellate counsel ’ s Anders b rief

. We have not recei ved an y response or brief

. The State decline d to file a
brief. When an appel la nt ’ s court

- appo inted counsel files a motion to withdr aw on the
gro und th at an appeal i s frivolous and fulfills the requirements of Anders , we mus t independen tly examine the reco rd to se e if there is any arguable ground tha t may be raised on the appellant ’ s beha lf. See S tafford v. State , 813 S.W.2d 503, 511 (Tex. Crim.
A pp. 19 91 )

. When det er mining whether a gro und fo r a ppeal exists, we consider the record, the briefs, and any pro se response. See Schulman , 252 S.W.3d at 4 08

– 09

. Only
after we conduct ou r own e xamination to d etermine whether co u nsel has correctly
assessed the case may we grant he r motion to withdraw

. See Penson v. Ohio , 488 U.S. 75, 82

– 83, 109 S. Ct. 346, 351 (1988).
W e have c arefully r eviewed the r ecord and co unsel ’ s brief, we ag ree wi th

co unsel that the appea l is wholly frivolous and without merit, and we find nothing in the record that might arguably suppor t the appeal. See Bledsoe v. State , 178 S.W.3d 824,5

826

– 27 (Tex. Cri m. App. 20 05)

. We therefore grant counsel ’s moti on to withdraw

an d a ffirm th e t rial c ourt ’ s judgment.

/s/ Dana Womack
Dana Womack Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: August 26 , 2019