NO. 07-06-0160-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

FEBRUARY 28, 2007

______________________________

CARL BURFORD, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 299TH DISTRICT COURT OF TRAVIS COUNTY;

NO. D-1-DC-05-301203; HONORABLE JON WISSER, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Following a plea of not guilty, Appellant, Carl Burford, was convicted by a jury of

possession of a controlled substance, enhanced. The trial court assessed punishment at

five years confinement. We affirm.
1Anders v. California, 386 U.S. 738 (1967).

2

Anders Brief and Pro Se Response

In presenting this appeal, Appellant’s counsel has filed an Anders1 brief in support

of a motion to withdraw. Counsel has also certified to this Court that he sent a copy of his

brief to Appellant and informed him that, in counsel's view, the appeal is without merit.

Additionally, counsel informed Appellant of his right to review the record and file a pro se

response if he desired to do so. The Clerk of this Court also advised Appellant by letter of

his right to file a response to counsel’s brief. 

Appellant did file a pro se response asserting six points of error: (1) failure to submit

an article 38.23 instruction to the jury, (2) refusing to allow him to represent himself, (3)

ineffective assistance of counsel, (4) denial of the right of confrontation of witnesses, (5)

failure to suppress illegally seized evidence, and (6) prosecutorial misconduct. 

The State filed a brief in which it agrees with counsel that no meritorious issues exist

and the appeal is therefore frivolous. We too have independently examined the entire

record to determine whether there are any non-frivolous grounds which might support the

appeal. See Penson v. Ohio, 488 U.S. 75 (1988); 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 appeal is wholly
3

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).

Background Facts

Appellant was involved in a motorcycle accident. According to an emergency

medical technician dispatched to the scene, Appellant suffered a head injury and was

disoriented. He did not respond to questions and was combative when medical personnel

attempted to further evaluate him. He was restrained on a backboard and transported by

ambulance to the hospital for further examination. A police officer responded to the scene

of the accident and allowed emergency medical personnel to treat Appellant before

concluding his on-scene investigation. Per procedure and policy, the officer followed

Appellant to the hospital to obtain followup information necessary to complete his report.

A hospital technician testified that once Appellant was secured on a gurney, his

leather jacket was removed and the pockets were searched for purposes of identification

and inventory. During the search, a small black electronic scale, a baggie containing a

white powdery substance, and numerous small baggies were found. The technician

testified that hospital policy dictates that any suspected illegal substances be turned over

to the police. He placed the items in a bag and gave them to the police officer.

Recognizing the powdery substance to be a controlled substance, the officer handcuffed

Appellant to the gurney while he was receiving medical treatment. After Appellant was

discharged from the hospital, he was arrested and transported to jail by another officer.
4

Appellant testified that after the accident he blacked out briefly, but that when 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. Appellant admitted during his

testimony that at the time of the accident he was in possession of more than four grams of

cocaine and that he was guilty of the charged offense. He testified the cocaine was not

located in his jacket, but was instead under his waistband in his underwear. He further

testified he never gave consent to have his clothing searched by law enforcement or

medical personnel.

Applicable Law and Analysis of Counsel’s Arguable Error 

In support of his motion to withdraw, counsel certifies he has professionally

evaluated the record and, in his opinion, the record reflects no reversible error upon which

an appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45 (1967); Monroe

v. State, 671 S.W.2d 583, 585 (Tex.App.--San Antonio 1984, no pet.). Thus, he concludes

the appeal is frivolous and without merit. 

Consistent with his professional duty, counsel has candidly set forth a single

“arguable error” and has discussed why, under the controlling authorities, such error is

without merit and why there is no other potential error in the court's judgment. 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 pursuant to article 38.23 of the Texas Code of Criminal Procedure. A jury
5

instruction under article 38.23 is required only when there is a factual dispute about how

evidence was obtained. Garza v. State, 126 S.W.3d 79, 85 (Tex.Crim.App. 2004), citing,

Thomas v. State, 723 S.W.2d 696, 708 (Tex.Crim.App. 1986).

The Anders brief notes that during the charge conference, defense counsel

requested a jury instruction per article 38.23, which the trial court refused. Counsel

surmises that Appellant’s testimony that the cocaine was in his underwear and not in his

jacket could raise a fact issue concerning the legality of its discovery. The trial court,

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 2000, pet. ref’d). We agree with

counsel’s assessment that the point would have been non-meritorious because the trial

court did not err in refusing to instruct the jury pursuant to article 38.23 of the Texas Code

of Criminal Procedure. 

Accordingly, we grant counsel’s motion to withdraw and affirm the judgment of the

trial court.

Patrick A. Pirtle

 Justice

 

Do not publish.