Leslie Allen Foster v. State ( 2007 )

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-06-169-CR

NO. 2-06-170-CR

LESLIE ALLEN FOSTER APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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MEMORANDUM OPINION ^{(footnote: 1)}

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Appellant Leslie Allen Foster entered an open plea of guilty to burglary of a habitation and aggravated robbery of an elderly person.  The trial court convicted Appellant and sentenced him to twenty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice (TDCJ) on the burglary conviction and thirty years’ confinement in the Institutional Division of  the TDCJ on the aggravated robbery conviction, with the sentences to run concurrently.

In each case, Appellant’s court-appointed appellate counsel has filed a motion to withdraw as counsel and a brief in support of that motion.  In his brief, counsel has reviewed the history of the case, including detailing the evidence presented.  Counsel’s brief and motion meet the requirements of Anders v. California ^{(footnote: 2)} by presenting a professional evaluation of the record demonstrating why there are no reversible grounds on appeal and referencing any grounds that might arguably support the appeal. ^{(footnote: 3)}  Although this court gave Appellant the opportunity to file a pro se brief, he did not file one.

In our duties as a reviewing court, we must conduct an independent evaluation of the record to determine whether counsel is correct in determining that the appeal is frivolous. ^{(footnote: 4)}  Only then may we grant counsel’s motion to withdraw. ^{(footnote: 5)}   Because Appellant entered an open plea of guilty, our independent review for potential error is limited to potential jurisdictional defects, the voluntariness of Appellant’s plea, error that is not independent of and supports the judgment of guilt, and error occurring after entry of the guilty plea. ^{(footnote: 6)} We have carefully reviewed the record and counsel’s brief.  We agree with counsel that these appeals are wholly frivolous and without merit.  We find nothing in the record that might arguably support the appeals. ^{(footnote: 7)}

Consequently, we grant the motion to withdraw in each case and affirm the trial court’s judgments.

PER CURIAM

PANEL F: DAUPHINOT, GARDNER, and WALKER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED:  July 5, 2007

FOOTNOTES

1:

See Tex. R. App. P. 47.4.

2:

386 U.S. 738, 87 S. Ct. 1396 (1967).

3:

See Mays v. State , 904 S.W.2d 920, 922-23 (Tex. App.—Fort Worth 1995, no pet.).

4:

See Stafford v. State , 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays , 904 S.W.2d at 923.

5:

See Penson v. Ohio , 488 U.S. 75, 83-84, 109 S. Ct. 346, 351 (1988).

6:

See Monreal v. State , 99 S.W.3d 615, 620 (Tex. Crim. App. 2003); Young v. State , 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000).

7:

See Bledsoe v. State , 178 S.W.3d 824, 827 (Tex. Crim. App. 2005).