Vernon Ray Spaw A/K/A Vernon Spaw v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 02-07-327-CR
02-07-328-CR
VERNON RAY SPAW A/K/A VERNON SPAW APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Vernon Ray Spaw entered open pleas of guilty to burglary of
a habitation and felon in possession of a firearm, and he pleaded true to the
deadly weapon finding and to the repeat offender notice. The trial court
accepted his pleas and subsequently assessed punishment at forty years’
1
… See Tex. R. App. P. 47.4.
confinement for the burglary offense 2 and ten years’ confinement for the felon
in possession of a firearm offense. 3 In three points, Spaw now appeals these
convictions. We affirm.
Spaw’s court-appointed appellate 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 4 by presenting a
professional evaluation of the record demonstrating why there are no arguable
grounds for relief. We gave Spaw the opportunity to file a pro se brief, and he
has filed one. 5
2
… See Tex. Penal Code Ann. § 30.02 (Vernon 2003) (burglary of a
habitation offense); see id. §§ 12.32, 12.42(b) (Vernon Supp. 2008)
(punishment range for enhanced second-degree felony is five to ninety-nine
years’ confinement).
3
… See id. § 46.04 (Vernon Supp. 2008) (felon in possession of firearm
offense); id. § 12.34 (punishment range for third-degree felony is two to ten
years’ confinement).
4
… 386 U.S. 738, 87 S. Ct. 1396 (1967).
5
… Spaw complains that the trial court abused its discretion by allowing
him to enter an open plea of guilty without a competency hearing, that the
State acted with prosecutorial vindictiveness in seeking a higher sentence than
that offered during plea negotiations, and that he received ineffective assistance
of counsel in the trial court. Notwithstanding the standard of review that we
must apply to this case, the record supports none of these complaints.
2
As the reviewing court, we must conduct an independent evaluation of
the record to determine whether counsel is correct in determining that the
appeal is frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim.
App. 1991); Mays v. State, 904 S.W .2d 920, 923 (Tex. App.—Fort Worth
1995, no pet.). 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
Spaw entered an open plea of guilty, our independent review for potential error
is limited to potential jurisdictional defects, the voluntariness of Spaw’s 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,
620 (Tex. Crim. App. 2003); Young v. State, 8 S.W.3d 656, 666–67 (Tex.
Crim. App. 2000).
We have carefully reviewed the record, including the sealed presentence
investigation report, counsel’s brief, Spaw’s pro se brief, and the State’s brief.
We agree with counsel that this appeal is wholly frivolous and without merit.
We find nothing in the record that might arguably support the appeal. See
Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005); accord
Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006). We
therefore grant counsel’s motion to withdraw and affirm the trial court’s
judgment.
3
PER CURIAM
PANEL: MCCOY, LIVINGSTON, and DAUPHINOT, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 31, 2008
4