      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00564-CR




                               Mark Anthony Holland, Appellant

                                                 v.

                                  The State of Texas, Appellee



       FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
            NO. 62,484, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant guilty of possessing more than four grams of cocaine with

intent to deliver. See Tex. Health & Safety Code Ann. § 481.112 (West 2003). The jury assessed

punishment, enhanced by two previous felony convictions, at forty years’ imprisonment.

               The primary issue at trial was the propriety of the search that resulted in the seizure

of the contraband. Both at a pretrial suppression hearing and at trial, Trooper Abraham Gonzales

testified that the car being driven by appellant was stopped for speeding. When he approached

appellant’s car on foot, Gonzales smelled unburned marihuana. Gonzales testified that he asked for

and was given appellant’s consent to search the vehicle. Before conducting the search, Gonzales

frisked appellant for safety and discovered the cocaine. A quantity of marihuana was found inside

the car.
                Appellant also testified at both the hearing and the trial. Appellant denied that he was

speeding. He also testified that, after he stopped his car, the officer approached him with his service

weapon drawn. Appellant denied giving Gonzales consent to search.

                The trial court overruled the motion to suppress and made written findings of fact that

are consistent with the officer’s testimony. At trial, the court’s jury charge included an article 38.23

instruction. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005). The jury was told that it was

not to consider the evidence seized by the officer if it had a reasonable doubt as to whether appellant

was speeding, the officer smelled marihuana, or appellant consented to the search. By convicting

appellant, the jury implicitly found against him on these issues.

                Appellant’s court-appointed attorney has filed a motion to withdraw supported by a

brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of

Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record

demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S.

75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684

(Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous

v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). After receiving a copy of counsel’s brief and

examining the appellate record, appellant submitted a written response.

                We have reviewed the record, counsel’s brief, and appellant’s written response. We

agree with counsel that the appeal is frivolous and without merit. We find nothing in the record that

might arguably support the appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim.

App. 2005). Counsel’s motion to withdraw is granted.



                                                   2
              The judgment of conviction is affirmed.




                                           __________________________________________

                                           Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: January 29, 2009

Do Not Publish




                                              3
