FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CR-16-362]
HONORABLE BRENT HALTOM, JUDGE
Phillip A. McGough, P.A., by: Phillip A. McGough, for
Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't
Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, JUDGE.
Miller County jury convicted Thomas Leaks of possession of
less than two grams of methamphetamine, a Class D felony. He
was sentenced as a habitual offender to 15 years'
imprisonment in the Arkansas Department of Correction. In
this no-merit appeal, Leaks's appellate attorney has
filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(k)(1)
(2017), seeking to withdraw as counsel on the basis that
there is no merit to an appeal.
March 5, 2018, Leaks filed pro se points pursuant to Rule
4-3(k)(2) alleging that the State's crime-lab expert was
uncertain about whether he possessed ecstasy or
methamphetamine; that the Texarkana police officer
"lied" about how much he had paid for the drugs to
"defile [his] character"; that his counsel was
ineffective for failing to object to his being charged with
possessing methamphetamine instead of ecstasy; and that his
counsel was ineffective for allowing him to testify. The
State filed a brief in response to Leaks's pro se points
as required by Rule 4-3(k)(3).
March 30, 2016, Texarkana police officer Chase Dixon
initiated a traffic stop on Leaks's vehicle after Dixon
saw a bag being dropped out of the driver's side of the
car. The bag contained what Dixon believed to be ecstasy
pills. The dash-cam video that recorded the stop
was introduced without objection.
was arrested, and he admitted that the pills were his and
that they did not belong to the two other occupants of the
vehicle. Leaks testified that he had bought the pills the day
before "'[c]ause it was my birthday, and I was
trying to party. . . . [A]nd I was trying to kick it, because
I had just got out of jail two weeks before that, and I
wasn't even on papers, then two weeks later was my
birthday, so I was trying to have a good time." While on
the stand, Leaks was also questioned about his prior criminal
history, which included seven prior felony convictions. Leaks
stated that he was tired of the lifestyle of "popping
pills" and asked the jury for forgiveness.
conclusion of the State's case, Leaks's counsel moved
for a directed verdict on the basis that there was no proof
presented that the crime was committed in Texarkana,
Arkansas, or Miller County, and that the State had not met
its burden. The circuit court denied the motion. Leaks
testified on his own behalf and then renewed his motion for
directed verdict, which was again denied by the circuit
court. The jury convicted Leaks of possession of a controlled
substance. This no-merit appeal followed.
request to withdraw on the ground that the appeal is wholly
without merit shall be accompanied by a brief including an
abstract and addendum. Ark. Sup. Ct. R. 4-3(k)(1). The brief
shall contain an argument section that consists of a list of
all rulings adverse to the defendant made by the circuit
court on all objections, motions, and requests made by either
party with an explanation as to why each adverse ruling is
not a meritorious ground for reversal. Eads v.
State, 74 Ark.App. 363, 47 S.W.3d 918 (2001). This
framework ensures that indigents are afforded their
constitutional rights. Campbell v. State, 74
Ark.App. 277, 47 S.W.3d 915 (2001). In furtherance of the
goal of protecting these constitutional rights, it is the
duty of both counsel and this court to perform a full
examination of the proceedings as a whole to decide if an
appeal would be wholly frivolous. Id.
motion for a directed verdict is a challenge to the
sufficiency of the evidence. Hinton v. State, 2015
Ark. 479, 477 S.W.3d 517. In Leaks's motion for directed
verdict, he argued that there was no proof that the crime
charged occurred in Texarkana, Arkansas. In his brief,
Leaks's counsel explains that the "State is not
required to prove jurisdiction or venue unless evidence is
admitted that affirmatively shows that the court lacks
jurisdiction or venue." See Lindsey v. State,
54 Ark.App. 266, 925 S.W.2d 441 (1996). There is a
presumption that venue is proper; accordingly, we agree that
this adverse ruling provides no meritorious ground for
appeal. Leaks's counsel also discusses the "second
prong" of his motion for directed verdict that the
"state didn't meet its burden" and properly
addresses, as required by Rule 4-3(k), the reasons the
adverse ruling provided no meritorious grounds for appeal.
final unfavorable rulings that Leaks's counsel identifies
in his brief all involve Leaks's testimony at trial and
questions that the State asked on cross-examination. We
review evidentiary rulings regarding the admissibility of
evidence under an abuse-of-discretion standard, and we do not
reverse absent a manifest abuse of that discretion and a
showing of prejudice. Mendez v. State, 2011 Ark.
536. Even if otherwise inadmissible, when a party invites
discussion of a certain subject, he or she opens the door to
a line of questioning by the opposing party so that the
opposing party may "fight fire with fire."
Wilburn v. State, 289 Ark. 224, 229, 711 S.W.2d 760,
762 (1986) (quoting Pursley v. Price, 283 Ark. 33,
670 S.W.2d 448 (1984)). We have long held that the circuit
court has wide latitude in governing cross-examination and
conclude that these adverse rulings were within the
court's discretion and are not meritorious points to
argue on appeal.
test for filing a no-merit brief is not whether there is any
reversible error but whether an appeal would be wholly
frivolous. House v. State, 2015 Ark.App. 280. After
thoroughly reviewing the entire record and counsel's
brief, we find that there has been compliance with Rule
4-3(k)(1); there are no nonfrivolous issues that support an
appeal in this case, and this appeal has no merit.
Furthermore, we also conclude that there is no merit to
Leaks's pro se points in that they are either not