NO. 07-06-0160-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL A FEBRUARY 28, 2007

______________________________ CARL BURFORD, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 299TH DISTRICT COURT OF TRA VIS COUNTY; NO. D-1-D C-05-301 203; HONO RABLE J ON WISSER , JUDGE

_______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORAND UM OPINION Following a plea of not gui lt y, Appellant, Carl Burford, was convicted by a jury of possession of

a controlled substance, enhanced. The trial cou rt assessed punishment at five year s confine ment. We affirm.1 Anders v. California, 386 U.S. 738 (196 7). 2 Anders Brief and Pro Se Response In presenting this appeal, Appellant’s counsel has filed an Anders 1 brief in support of a motion to withdraw. Counsel has also certified to this Court that he sent a copy of his brief to Appella nt and in formed hi m that, in counsel 's view, the appe al is wi thout meri t. Additionally, counsel informed Appellant of his right to review the record and file a pro se response if he de sired to do so. The Cle rk of this Court also advised Appellant by letter of his righ t to file a respons e to coun sel’s br ief. Appellant

did file a pro se responseassertin g six po ints of e rror: (1) failure to submit an article 38.23 instruction to the jury, (2) refusing to allow him to represent himsel f, (3 ) in effective assistance of counsel, (4) denial of the right of con frontation of wit nesses, ( 5 ) failure to suppres s illega lly seiz ed evide nce, and (6) prosec utorial m isconduc t. The State filed a brief in which it agrees with counsel that no meritorious issues exist and the appe al is the refore fri volous. We too have independe ntly examine d the ent ire record to determine whether there are any non-frivolous grounds which might support the appeal. See Penson v. Ohio , 488 U.S . 75 (198 8); Stafford v. State , 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). After reviewing the record, counsel’s brief, and appellant’s pro se response, we find no reversible error and agree with counsel that the a pp eal is wholly3

frivolous. Accordingly, we do not address the merits of the issues raised by Appellant’s pro se response . Bledsoe

v. State, 178 S.W.3d 824, 826 -27 (Tex .Crim.App . 2005).

Backgrou nd Facts Appellant

was in vol ved in a motorcycle accident. According to an e mergency medical technician dispatched to the scen e , Appellant suffered a head injury and was disoriented. He did not respond to questionsand was combative when medical personnel attempted to further evaluate him. He was restrained on a backboard and transported by ambulance to the ho spital fo r further examinati on. A police officer responded to the scene of the accident and allowed emergency medical perso nne l to treat Appell ant befor

e concluding his on-scene investigation. Per procedure and pol icy , the officer followed Appellant

to the hospital to obtain followu p informa tion necessary tocompletehis repo rt. A hospital technician testified that once Appell ant was secured on a gu rney, h is leather jacket was removed and the pocketswere searched for purposes of identification and invento ry. Du ring the search, a small black electronic scale, a baggie containing a white powdery substance, and numerous small baggies were foun d. The technician testified that hospital policydictates that any suspected illegal substances be turned over to the poli ce. He p laced th e items i n a bag a nd gave t hem to thepolice officer. Recognizing the powdery substance to be a controlled substance, the officer handcuffed Appellant

to the gurney while he was receivin g medical t reatment. After Appellant was discharg ed from th e hospital, he wa s arrested and tran sported to jail by another officer.4

Appellant

testifie d that after the acc ident heblacked out brie fly, but t hat w he n he came to he was able to stand and did not want to go to the hospital. Emergency medical personnel insisted he have his head wound treated. Appe llan t admitted during his testimony that at the time of the accident he was in possession of more than four grams of cocaine an d th at he was guilty of the charged offense. He testified the cocaine was not located in his jacket, but was inste ad under his waistband in his unde rwear. He further testified he never gave consent to have his clothin g searched by law enforcement or medical personnel.

Applicab le Law and A nalysis of Couns el’s Argu able Erro r In support of his moti on to wi thdraw, counsel certifies he has professionally evaluated the recor

d and, in his opinion, the record reflects no reversible error upon which an appeal can be predica ted. Anders v. California , 386 U.S . 738, 74 4-45 (196 7); Monroe v. State , 671 S.W.2d 583, 585 (Tex.App.--San Antonio 1984, no pet.). Thus, he concludes the appe al is fri volous a nd witho ut merit. Consistentwith his professional duty, cou nsel has candidly set forth a single “arguable error” and has discussed why, under the controll ing au thorities, such error is with out me rit and w hy there i s no othe r potenti al error i n the cou rt's judgm ent. See High v. State , 573 S.W.2d 807, 813 (Tex.Crim.App. 1978). Appellant’s counsel proffers as an arguable, albeit non-meritorious point of error, that the trial court erred in refusing to instruct the jury purs uant to article 38 .23 of theTexas C ode of Cr iminal P rocedure. A jury5

instruction under article 38.23 is requ ired only when there is a factual dispute about how evidence was obta ined. Garza v. State , 126 S.W.3d 79, 85 (Tex.Crim.App. 2004), citing, Thomas v. State , 723 S.W. 2d 696, 7 08 (Tex. Crim.App . 1986). The Anders brief notes that du ring the charge co nfe ren ce, defense counsel requested a jury in struction per art icle 38. 23, which the trial court refused. Counsel sur mises that Appellant’s testimony that the cocaine was in his underwear and not in hi s jacketcould raise a fact issue concerning the le gality of its discovery. The tr ial cour t, however, ruled there was no controverted fact issue regarding the discovery of the cocaine in Appellant’s jacket pocket. The court explained that seizure of the cocaine by the medical technician was a legal matter which had been resolved at a pretrial hearing

. See generally St. Clair v. State , 26 S.W.3d 89, 102 (Tex.App .–Waco 20 00, pet. r ef’d). Weagree wi th counsel’s assessment that the point would have been non -merit orious bec ause the trial court did not err in ref

using toinstruct the jury p ursuant to article 38.23 of the Texas Code of Crimin al Proce dure. Accordingly, we grant counsel’s motion to withdraw and affi rm the judgment of the trial cou rt. Patrick A. Pirtle Justice
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