Justin Ryan Rubio v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00418-CR
___________________________
JUSTIN RYAN RUBIO, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. 1452160D
Before Kerr, Pittman, and Womack, JJ.
Memorandum Opinion by Dana Womack
MEMORANDUM OPINION
Appellant Justin Ryan Rubio appeals his conviction and one-year jail sentence
for the offense of cruelty to non-livestock animal—torture.1 We will affirm.
On April 21, 2017, Rubio entered an open plea2 of guilty to cruelty to non-
livestock animal—torture. The trial court accepted his plea and ordered the
preparation of a presentence investigation report (PSI). After the completion of the
PSI, the trial court held a hearing on Rubio’s punishment. The court admitted the
PSI; heard testimony from two State’s witnesses, including an animal-cruelty
investigator; heard testimony from Rubio and one of his friends; found Rubio guilty;
and sentenced him to a one-year jail sentence. This appeal followed.
Rubio’s court-appointed counsel has filed a motion to withdraw as counsel and
a brief in support of that motion. In the brief, counsel avers that, in his professional
opinion, this appeal is frivolous. Counsel’s brief and motion meet the requirements of
Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967), by presenting a
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See Tex. Pen. Code Ann. § 42.092.
2
The term “open plea” is often utilized to refer to a myriad of different types of
pleas that a defendant might enter but sometimes is a misnomer. See Harper v. State,
No. 02-17-00016-CR, 2019 WL 165986, *1 (Tex. App.—Fort Worth, Jan. 10, 2019,
no pet. h.) (discussing the use of the term “open plea” in the various settings it has
been used, interpreted, and reviewed and whether it should be used at all). In this
case, Rubio entered his plea without the benefit of an agreement with the prosecutors
regarding sentencing (a sentencing bargain) and without the State having agreed to
reduce the charged offense (a charge bargain). We use the term “open plea” in this
case because that is how the plea is referred to in the trial court’s plea admonishments
and the trial court’s judgment.
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professional evaluation of the appellate record demonstrating why there are no
arguable grounds for relief. See Stafford v. State, 813 S.W.2d 503, 510–11 & n.3 (Tex.
Crim. App. 1991).
In compliance with Kelly v. State, counsel (1) notified Rubio of his motion to
withdraw; (2) provided him a copy of both the motion and brief; (3) informed him of
his right to file a pro se response; (4) informed him of his pro se right to seek
discretionary review should this court hold the appeal frivolous; and (5) took concrete
measures to facilitate his review of the appellate record. See 436 S.W.3d 313, 319
(Tex. Crim. App. 2014). This court afforded Rubio the opportunity to file a response
on his own behalf, but he did not do so. The State filed a letter stating that it would
not be filing a brief.
After 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, this court is
obligated to undertake an independent examination of the record to see if there is any
arguable ground that may be raised on his behalf. See Stafford, 813 S.W.2d at 511.
Only then may we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 75,
82–83, 109 S. Ct. 346, 351 (1988). Because Rubio entered an open plea of guilty, our
independent review for error is limited to jurisdictional defects, the voluntariness of
his plea, error that is not independent of and supports the judgment of guilt, and error
occurring after entry of the guilty plea. See Monreal v. State, 99 S.W.3d 615, 619–20
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(Tex. Crim. App. 2003); Young v. State, 8 S.W.3d 656, 666–67 (Tex. Crim. App. 2000);
see also Faisst v. State, 98 S.W.3d 226, 227 (Tex. Crim. App. 2003).
We have carefully reviewed counsel’s brief and the appellate record. We agree
with counsel that this appeal is wholly frivolous and without merit—we find nothing
in the appellate record that arguably might support this appeal. See Bledsoe v. State,
178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005); see also Meza v. State, 206 S.W.3d 684,
685 n.6 (Tex. Crim. App. 2006). Accordingly, we 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: April 11, 2019
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