## NO. 12

- 21

- 00173

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

HAROLD LLOYD ADAMS , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL FROM THE 7TH

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINI ON PER CURIAM Harold Lloyd Adams appeals his conviction for possession of a controlled substance. Appellant’s cou nsel 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.

B ACKGROUND

In April 2019
, Appellant was charged by indictment with the offense of possession of a
controlled substance , namely methamphetamine, in an amount of less than one gram , a state jail felony. 1 Appella nt entered a negotiated plea bargain with the State. During a plea hearing where the trial court admonished Appe llant as to the rights he waived in exchange for the recommended sentence as part of his plea agreement, Appellant admitted to violating his bo nd by consumi ng methamphetamine in August 2019

. Nevertheless, a fter the hearing, in September 2019, t he trial

co urt placed Appellant on deferred adjudication community supervision for three years and,

1 T EX

. H EALTH & S AFETY C ODE A NN

. §§ 481.102(6), 481.115(a), (b) (W e st Supp. 2021 ).2 among other things, ordered that Appellant pay restitu tion to the Texas Department of Public Safety. 2 In July 2021, the State filed a motion to adjudicate Appellant’s guilt, alleging that Appellant violated the terms of his community supervision in that he failed to appear for a scheduled drug test
, and that h is subsequent urinalysis taken a few days later tested positive for methamphetamine and amphetamine

. At the sub sequent hearing, Appellant pleaded “not true” to the substantive allegations against him in the State’s motion. At the hearing, the trial cour t heard evidence from Appellant’s community supervision officer that Appellant failed to report and s ubmit a required drug test. The officer also testified that Appellant’s subsequent drug test was positive for methamphetamine and amphetamine

. A toxicolo gist testified that he tested the specimen and that it contained methamphetamine and amph et a mine

. Th e lab report confirming this result was
admitted into evidence. Appellant’s sister testified on his behalf , explaining that other than these

v iolations, A ppellant successfully complied with the terms of his community supervision. She explaine d that Appel lant was an elderly man who had never been in legal trouble until he began using drugs later in life, and that he ran a successful business for several dec ades. She also

theorized that the positive lab result could have been based on a topical liniment pr ovided to Appellant by his elderly mother with who m she and Appellant resided. During argument, the State pointed to the pattern of Appellant’s continued d rug use. Appellant continued to de ny any consumption of the drugs found in the toxicology report. T he State argued that Appellant should receive a twelve

- month sentence of impris onment, whereas Appellant contended he should receive an extensi on of his co mmunity supervision period. Accordingly, t he trial court found that Appellant violated the terms of his community supervision, adjudicated him guilty of the offense, revoked his c ommunity supervision, and sentenced him to six months of impriso nment in a s tate jail facility

. This appeal followed.

2 The trial court ordered Appellant to pay restitution to the Texas Department of Public Safety as a condition of his deferre d adjudication community supervision as opposed to the subsequent order adjudicating his guilt, which we have he l d is permissible. See King v. State , No. 12

- 17

- 00194

- CR, 2018 WL 345737, at *2 (Tex. App.

— Tyler Jan. 10, 2018, no pet.) (mem. op., n ot designat ed for publication) (citing Aguilar v. State , 279 S.W.3d 350, 353 (Tex. App.

— Austin 2007, no pet.)).3 A NALYSIS P URSUANT TO A NDERS V

. C ALIFORNIA Appellant’s cou nsel filed a brief in compliance with Anders and Gainous , stating that s he dilig ently 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. From o ur review of counsel’s brief, it is apparent that counsel is well acquainted wi th the facts in this case. In compliance with Anders
, Gainous , and High v. State , 573 S.W.2d 807, 812 (Tex. Crim. App. 1978), counsel’s brief presents a chronological summatio n of the procedural history of the case,

and further states that counsel is unab le to raise any arguable issues for appeal. 3 We have

reviewed the record for reversible error and have found none. See Bledsoe v. State , 178 S.W.3d
824, 826

- 27 (Tex. Crim. Ap p . 2005).

C ONCLUSION As required by Stafford v. State , 813 S.W.2d 503, 511 (Tex. Crim. App. 1991), Appellant’s counsel moved for leave to wit hdraw. See also In re Schulman , 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the mo t ion for consideration with the

merits. Having done s o and finding no reversible error, Appellant’s counsel’s motion for leave

to withdraw is hereby gra nted, and the trial court’s judgment is affirmed. See T EX

. R. A PP

. P.

43.2. Appellant’s counsel has a d uty 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 fil e a petitio n for discretionary review. See T EX

. R. A PP

. P. 48.4; In re Schulman , 22 S.W .3d at 411 n.35. Should

A p pellant wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discre tionary review or he must file a pro se petition for discretionary review. S ee In re Schulman , 22 S.W. 3 d at 408 n. 22. Any petition for discretionary review must be filed within thirty days from the date of either this opinion, or if a

motion for reheari ng is filed, the date that the last timely motion for rehearing is overruled by

this Court. See T EX

. R

. A PP

. P. 68.2(a). Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals. See T EX

. R. A PP

. P. 68.3. Any petitio n for discretionary

3 In compli a nce with Kelly v. State , Appellant’s counsel provided Appellant with a copy of the brief, notified Appellant of h er motion to withd raw as couns el, informed Appellant of his right to file a pro se response, and took concrete measures to facilitate Appellan t ’s review of the appell ate record. See Kelly v. State , 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). Appellant was given time to fi le his own b rief. The time for filing such brief has expired and no pro se brief has been filed.4 review should comply with the requirements of Rule 68.4 o f the Texas Rules of Appel l ate

Procedure. See T EX

. R. A PP

. P. 68.4; In re Schulman , 22 S.W.3d at 408 n. 22. Opinion delivered May 18 , 2022. Panel consisted of Worthen, C.J., Hoyl e, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MAY 1 8 , 2022

NO. 12

- 21

- 00173

- CR

HAROLD LLOYD ADAMS , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 7th District Court

of Smith County, Texas (Tr.Ct.No. 007

- 0487

- 1 9 )
THIS CAUSE came to be heard on the appellate record and brief s 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 con sisted of Worthen, C.J., Hoyle, J. and Neeley, J.