Francisco Tabares Elvira v. State ( 2009 )

Opinion issued November 19, 2009

In The

Court of Appeals

For The

First District of Texas  

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NOS. 01-08-00864-CR

          01-08-00865-CR

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FRANCISCO TABARES ELVIRA, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause Nos. 708546 and 708547

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MEMORANDUM OPINION

          A jury found appellant, Francisco Tabares Elvira, guilty of the offense of aggravated assault and aggravated robbery and assessed his punishment at confinement for 40 years and 25 years, respectively. This Court affirmed appellant’s convictions in December 1997. See v. State, 1997 WL 804178 (Tex. App. —Houston [1st Dist.] December 23, 1997, no pet.) (Not designated for publication).

           In 2004, post-conviction DNA testing was conducted on evidence relating to appellant’s convictions. In June 2008, appellant filed pro se a document construed by the trial court as a request for appointment of counsel to pursue post-conviction DNA testing. The trial court appointed counsel. Subsequently, the State filed a motion requesting that the trial court deny DNA testing. The trial court denied testing, and appellant challenges the denial. We affirm.

          Appellant’s counsel on appeal has filed a brief stating that the record presents no reversible error, that the appeals are without merit and are frivolous, and that the appeals must be dismissed or affirmed. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, (1967). The brief meets the requirements of Anders by presenting a professional evaluation of the record and detailing why there are no arguable grounds for reversal. Id. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d 807, 810 (Tex. Crim. App. 1978).

          Counsel represents that he has served a copy of the brief on appellant. Counsel has also advised appellant of his right to examine the appellate record and file a pro se brief. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). More than 30 days have passed, and appellant has not filed a pro se brief. Having reviewed the record and counsel’s brief, we agree that the appeals are frivolous and without merit and that there is no reversible error. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).

          We affirm the judgments of the trial court and grant counsel’s motion to withdraw. Attorney Bob Wicoff must immediately send the notice required by Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice with the Clerk of this Court.

PER CURIAM

Panel consists of Justices Jennings, Higley and Sharp.

Do not publish. Tex. R. App. P. 47.2(b).