                                   NO. 07-07-0301-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                     APRIL 17, 2008

                          ______________________________


                      DENNIS RAY FRANKLIN, JR., APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

             FROM THE 33RD DISTRICT COURT OF BURNET COUNTY;

             NO. 32736; HONORABLE GUILDFORD L. JONES, III, JUDGE

                         _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


       In a two-count indictment, Appellant, Dennis Ray Franklin, Jr., was charged with

delivery of a controlled substance and delivery of a controlled substance to a child.

Following pleas of not guilty, a jury found Appellant guilty on both counts. Punishment was

assessed by the trial court at fifteen years confinement. In presenting this appeal, counsel
has filed an Anders1 brief in support of a motion to withdraw. We affirm and grant

counsel’s motion.


       In support of her motion to withdraw, counsel certifies she has diligently reviewed

the record and, in her opinion, the record reflects no reversible error upon which an appeal

can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d

493 (1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.--San Antonio 1984, no pet.).

Thus, she concludes the appeal is frivolous. Counsel has candidly discussed why, under

the controlling authorities, there is no error in the court's judgment. See High v. State, 573

S.W.2d 807, 813 (Tex.Crim.App. 1978). Counsel has also shown that she sent a copy of

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

merit. In addition, counsel has demonstrated that she notified 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 not file a response. Neither did the State favor us with a brief.


       Captain Paul Nelson of the Burnet Police Department testified that he stopped

Appellant for a traffic violation for failing to use his blinker. Appellant did not have a driver’s

license nor proof of insurance, but did identify himself. The passenger in Appellant’s

vehicle, a sixteen year old juvenile, D.T., did not have identification and was asked to step

out of the car. A baggie containing methamphetamine fell out of D.T.’s shorts and onto the


       1
           Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

                                                2
pavement. Nelson observed the baggie despite D.T. placing his foot on it in an attempt to

conceal it. D.T. was arrested and turned over to the juvenile probation office.


       Appellant was arrested on an outstanding warrant for violations of community

supervision. After receiving his Miranda warnings and executing a waiver of his rights, he

expressed a willingness to work as an informant for law enforcement and agreed to speak

with Deputy Sheriff Tommy Headrick and Michael T. Hanley, an FBI agent. Among other

things, Appellant confessed to delivering methamphetamine to D.T.


       By the Anders brief, counsel raises two arguable issues and then explains why no

reversible error is presented. The first arguable issue is directed at the voluntariness of

Appellant’s confession.    Voluntariness of a confession is determined based on an

examination of the totality of the circumstances surrounding its acquisition. See Wyatt v.

State, 23 S.W.3d 18, 23 (Tex.Crim.App. 2000). Counsel acknowledges that the recorded

interview between Appellant and law enforcement officers shows that no promises were

made to Appellant in exchange for his confession. Despite Appellant’s testimony that he

believed the officers would get him a “deal” in exchange for information, the recorded

interview demonstrates otherwise. The interview also shows that Appellant was read his

rights and understood them.




                                            3
       The second arguable issue is whether prosecution for delivery of a controlled

substance under § 481.112 of the Texas Health and Safety Code,2 and prosecution for

delivery of a controlled substance to a child under § 481.122, where the underlying facts

involve one delivery of one controlled substance to one person, violates double jeopardy.

There are three distinct types of double jeopardy claims: (1) a second prosecution for the

same offense after an acquittal; (2) a second prosecution for the same offense after

conviction; and (3) multiple punishments for the same offense. Bigon v. State, Nos. PD-

1769-06, PD-1771-06, 2008 WL 141929, at *7 (Tex.Crim.App. Jan. 16, 2008); Langs v.

State, 183 S.W.3d 680, 685 (Tex.Crim.App. 2006). Likewise, there are two distinct

contexts in which a multiple punishments claim can arise: (1) the lesser-included offense

context, in which the same conduct is punished twice; once for the basic conduct, and a

second time for the same conduct plus more; and (2) punishing the same criminal act twice

under two distinct statutes when the Legislature intended the conduct to be punished only

once. Bigon, at *7; Langs, 183 S.W.3d at 685. In examining whether two offenses are the

“same offense” for double jeopardy purposes in the context of a multiple punishments

claim involving two distinct statutes, the ultimate question is whether the Legislature

intended to allow the same conduct to be punished under both statutes. Bigon, at *8. In

this case the legislative intent is clear. If conduct that is an offense under § 481.122 is also

an offense under another section of Chapter 481 of the Texas Health and Safety Code



       2
       All section references are to the Texas Health and Safety Code (Vernon 2003 &
Supp. 2007).

                                               4
(e.g. § 481.112) , the actor may be prosecuted under either section or both. § 481.122(e)

(emphasis added). Thus, as counsel concludes, there was no double jeopardy violation.


       Furthermore, we have conducted a thorough and independent examination of the

entire record and agree with counsel that there are no non-frivolous grounds which might

support the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300

(1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). See also Bledsoe

v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).


       Accordingly, counsel's motion to withdraw is granted and the trial court’s judgment

is affirmed.3


                                                Patrick A. Pirtle
                                                    Justice


Do not publish.




       3
        Per Rule 48.4 of the Texas Rules of Appellate Procedure (effective September 1,
2007), we remind counsel of the duty to inform Appellant within five days after the date of
this opinion to send a copy of the opinion and judgment together with notification of
Appellant’s right to file a pro se petition for discretionary review.

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