                                 IN THE
                         TENTH COURT OF APPEALS

                                   No. 10-08-00017-CR

SAMUEL LOY GRAHAM, JR.,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                      From the County Court at Law No. 1
                             Brazos County, Texas
                      Trial Court No. 05-02232-CRM-CCL1


                          MEMORANDUM OPINION


      A jury found Samuel Loy Graham, Jr. guilty of possession of marijuana in an

amount less than two ounces. The trial court sentenced Graham to 180 days in jail and a

$2,000 fine, with the sentence being suspended for one year of community supervision

and $1,500 of the fine probated.

      Graham’s appellate counsel filed an Anders brief presenting two potential issues

that he determined are without merit. See Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967). Although informed of his right to do so, Graham did not
file a pro se brief or response. The State did not file a brief. We will affirm.

       In an Anders case, we must, “after a full examination of all the proceedings, []

decide whether the case is wholly frivolous.” Anders, 386 U.S. at 744, 87 S.Ct. at 1400;

accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991); Coronado v. State,

996 S.W.2d 283, 285 (Tex. App.—Waco 1999, order) (per curiam), disp. on merits, 25

S.W.3d 806 (Tex. App.—Waco 2000, pet. ref’d); see generally Villanueva v. State, 209

S.W.3d 239, 243-44 (Tex. App.—Waco 2006, no pet.). An appeal is “wholly frivolous” or

“without merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486

U.S. 429, 439 n.10, 108 S.Ct. 1895, 1902 n.10, 100 L.Ed.2d 440 (1988). Arguments are

frivolous if they “cannot conceivably persuade the court.” Id. at 426, 108 S.Ct. at 1901.

An appeal is not frivolous if based on “arguable grounds.” Stafford, 813 S.W.2d at 511.

       Appellate counsel first addresses whether the evidence is legally and factually

sufficient to support the conviction and concludes that it is sufficient. When reviewing

a challenge to the legal sufficiency of the evidence to establish the elements of a penal

offense, we must determine whether, after viewing all the evidence in the light most

favorable to the verdict, any rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,

318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Adelman v. State, 828 S.W.2d 418, 422

(Tex. Crim. App. 1992). Any inconsistencies in the evidence are resolved in favor of the

verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

       In a factual sufficiency review, we ask whether a neutral review of all the

evidence, though legally sufficient, demonstrates either that the proof of guilt is so

Graham v. State                                                                      Page 2
weak or that conflicting evidence is so strong as to render the factfinder’s verdict clearly

wrong and manifestly unjust. Watson v. State, 204 S.W.3d. 404, 414-15 (Tex. Crim. App.

2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). “The court reviews the

evidence weighed by the jury that tends to prove the existence of the elemental fact in

dispute and compares it with the evidence that tends to disprove that fact.” Johnson, 23

S.W.3d at 7.

       The State was required to prove beyond a reasonable doubt that Graham

knowingly or intentionally possessed a usable quantity of marijuana in an amount of

two ounces or less. See TEX. HEALTH & SAFETY CODE ANN. § 481.121 (Vernon 2003). The

Court of Criminal Appeals has provided the following explanation for the “so-called

‘affirmative links’ rule”:

       [I]n a possession of a controlled substance prosecution, “the State must
       prove that: (1) the accused exercised control, management, or care over
       the substance; and (2) the accused knew the matter possessed was
       contraband.”        Regardless of whether the evidence is direct or
       circumstantial, it must establish that the defendant’s connection with the
       drug was more than fortuitous. This is the so-called “affirmative links”
       rule which protects the innocent bystander—a relative, friend, or even
       stranger to the actual possessor—from conviction merely because of his
       fortuitous proximity to someone else’s drugs. Mere presence at the
       location where drugs are found is thus insufficient, by itself, to establish
       actual care, custody, or control of those drugs. However, presence or
       proximity, when combined with other evidence, either direct or
       circumstantial (e.g., “links”), may well be sufficient to establish that
       element beyond a reasonable doubt. It is, as the court of appeals correctly
       noted, not the number of links that is dispositive, but rather the logical
       force of all of the evidence, direct and circumstantial.

Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006) (quoting Evans v. State, 185

S.W.3d 30, 34 (Tex. App.—San Antonio 2005)) (footnotes omitted). Thus, there must be


Graham v. State                                                                       Page 3
direct or circumstantial evidence establishing that Graham exercised control,

management, or care over the controlled substance and knew it was contraband. See id.

at 161-62.

       The evidence showed that Bryan police officers were attempting to serve

warrants on a person who, according to an anonymous tip, was at Graham’s residence.

After the officers knocked, a small child opened the door. Sergeant Thane testified that

he immediately noticed the odor of burnt marijuana.          Although Graham refused

consent for the officers to enter and search the residence, they entered and found a half-

smoked marijuana cigar on the entertainment center. Sergeant Thane said that Graham

admitted that the marijuana cigar was his. At trial, Graham testified that the marijuana

did not belong to him, but he admitted that it was in his home and that he had admitted

to the officers that it belonged to him.

       We agree with counsel that sufficiency of the evidence is not an issue that might

arguably support an appeal.

       Graham’s appointed counsel next addresses whether prosecutorial misconduct

caused reversible error. During Sergeant Thane’s testimony, the prosecutor asked the

trial judge if she could “have just a moment to inform the officer of a needed fact” and

that she needed to “take him outside for a second.” Graham’s trial attorney did not

object to this action, and the record does not indicate what the conversation was

between the prosecutor and witness. Prosecutorial misconduct must be preserved by a

timely objection for appellate review. See TEX. R. APP. P. 33.1(a); Perkins v. State, 902

S.W.2d 88, 96 (Tex. App.—El Paso 1995, no pet.). Because the possible misconduct was

Graham v. State                                                                     Page 4
not preserved, we agree with counsel that it is not an issue that might arguably support

an appeal.

        We have also conducted an independent review of the record, and because we

find this appeal to be wholly frivolous,1 we affirm the judgment. Counsel must send

Graham a copy of our decision by certified mail, return receipt requested, at Graham’s

last known address. TEX. R. APP. P. 48.4. Counsel must also notify Graham of his right

to file a pro se petition for discretionary review. Id.; see also Ex parte Owens, 206 S.W.3d

670, 673-74 (Tex. Crim. App. 2006); Villanueva, 209 S.W.3d at 249. We grant counsel’s

motion to withdraw, effective upon counsel’s compliance with the aforementioned

notification requirement as evidenced by “a letter [to this Court] certifying his

compliance.” See TEX. R. APP. P. 48.4.



                                                          REX D. DAVIS
                                                          Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurs in the judgment to the extent it grants the motion to
       withdraw and affirms the judgment of the trial court. He does not join the
       opinion. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed October 28, 2009
Do not publish
[CR25]


1 We note that trial counsel’s failure to object to the possible prosecutorial misconduct does not arguably
support an appeal asserting ineffective assistance of counsel because the appellate record in this case does
not evidence the reasons for trial counsel’s conduct, and because the possible deficiency could have been
the subject of trial strategy not revealed by the record. See Jones v. State, 170 S.W.3d 772, 776-77 (Tex.
App.—Waco 2005, pet. ref’d).

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