             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-18-00357-CR
      ___________________________

 TOSHA LADIACAY HARKINS, Appellant

                     V.

          THE STATE OF TEXAS


  On Appeal from the 355th District Court
          Hood County, Texas
        Trial Court No. CR13689


Before Sudderth, C.J.; Gabriel and Womack, JJ.
 Memorandum Opinion by Justice Womack
                          MEMORANDUM OPINION

      After hearing testimony and considering evidence establishing (1) that a glass

pipe with residue tested positive for methamphetamine and Tosha Ladiacay Harkins’s

DNA, and (2) that the glass pipe was among other drug paraphernalia1 found in the

home where Harkins and her two-month old infant resided, a jury convicted Harkins

of the offenses of endangering a child and possession of less than one gram of a

controlled substance. Finding the State’s enhancement paragraphs true, the jury

assessed Harkins’s punishment at seven years’ confinement for each offense. See Tex.

Health & Safety Code Ann. §§ 481.102(6) (providing methamphetamine is a Penalty

Group 1 controlled substance), .115(a), (b) (providing possession of less than one

gram of a Penalty Group 1 controlled substance, including adulterants or dilutants, is

a state jail felony); Tex. Penal Code Ann. §§ 12.34(a) (providing range of confinement

for third-degree felony is two to ten years), .425(a) (requiring that state jail felony

defendant, who has previously been finally convicted of two state jail felony offenses,

be sentenced within the range of confinement for a third-degree felony). The trial

court sentenced her accordingly.

      Harkins’s court-appointed appellate counsel has filed a motion to withdraw as

counsel and a brief in support of that motion. Counsel’s brief and motion meet the

requirements of Anders v. California by presenting a professional evaluation of the

      1
       The paraphernalia included a straw containing remnants of methamphetamine,
a butane lighter, scales, plastic baggies, Q-Tips®, and a marijuana pipe.


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record and demonstrating why there are no arguable grounds for relief. 386 U.S. 738,

744, 87 S. Ct. 1396, 1400 (1967); see In re Schulman, 252 S.W.3d 403, 406–12 (Tex.

Crim. App. 2008) (orig. proceeding) (analyzing the effect of Anders).           Appellate

counsel notified Harkins of counsel’s motion and Anders brief and informed her of

her right to obtain the record on appeal, to file a pro se response to counsel’s Anders

brief, and to file a petition for discretionary review if the judgment is affirmed in this

court. See Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014) (specifying in part

that appointed counsel must notify the client regarding the motion and brief and

provide the client a copy of each and setting forth other requirements that counsel

must satisfy to assist the client in understanding her pro se rights and effectuating

those rights and securing pro se access to the record).

      Appellate counsel also provided to Harkins a prepared form to request access

to the record, which Harkins signed and filed in this court on January 7, 2019. The

clerk of the 355th District Court in Hood County, Texas, has filed with this court a

certification of certified mail showing that a copy of the record was mailed to

Harkins2 on January 10, 2019. On January 28, 2019, the package containing the

clerk’s and reporter’s records was returned to the clerk with a handwritten notation,

“RTS-offender refused,” and a label dated January 24, 2019, stating, “RETURN TO

SENDER—REFUSED—UNABLE TO FORWARD—RETURN TO SENDER.”

      2
       The record was mailed to the same address Harkins had provided to this court
on January 7, 2019.


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On February 13, 2019, we sent notice to Harkins’s last known address informing her

that her appellate counsel had filed a motion to withdraw and an Anders brief in

support of the motion, that the trial court clerk had notified this court that the record

had been sent to Harkins by certified mail and had been returned to the clerk based

on Harkins’s refusal to accept it as noted on the package, and that she had the right to

file a pro se brief. In that letter, we also asked Harkins to advise the court within

fourteen days whether she wished to file a pro se response to her appellate counsel’s

Anders brief. We have not received any response or brief. The State declined to file a

brief.

         When an appellant’s court-appointed counsel files a motion to withdraw on the

ground that an appeal is frivolous and fulfills the requirements of Anders, we must

independently examine the record to see if there is any arguable ground that may be

raised on the appellant’s behalf. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim.

App. 1991). When determining whether a ground for appeal exists, we consider the

record, the briefs, and any pro se response. See Schulman, 252 S.W.3d at 408–09. Only

after we conduct our own examination to determine whether counsel has correctly

assessed the case may we grant her motion to withdraw. See Penson v. Ohio, 488 U.S.

75, 82–83, 109 S. Ct. 346, 351 (1988).

         We have carefully reviewed the record and counsel’s brief, we agree with

counsel that the appeal is wholly frivolous and without merit, and we find nothing in

the record that might arguably support the appeal. See Bledsoe v. State, 178 S.W.3d 824,

                                           4
826–27 (Tex. Crim. App. 2005). We therefore grant counsel’s motion to withdraw

and affirm the trial court’s judgment.


                                               /s/ Dana Womack

                                               Dana Womack
                                               Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 26, 2019




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