Jeremey Lee v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-343-CR
JEREMEY LEE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Jeremey Lee entered an open plea of guilty to one count of
aggravated robbery with a deadly weapon. After the trial court heard testimony
from the complainant, a courtroom deputy, Appellant, Appellant’s mother, and
Appellant’s girlfriend, the trial court found Appellant guilty and sentenced him
to forty years’ confinement.
1
 See Tex. R. App. P. 47.4.
Appellant’s court-appointed appellate counsel has filed a motion to
withdraw as counsel and a brief in support of the 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, 87
S. Ct. 1396 (1967), by presenting a professional evaluation of the record and
demonstrating why there are no arguable grounds for appeal. 2 We gave
Appellant an opportunity to file a pro se brief, and Appellant filed a pro se brief
that raises eight points. 3 The State also filed a brief. 4
After an appellant’s court-appointed counsel files a motion to withdraw
on the ground that the appeal is frivolous and fulfills the requirements of
Anders, this court is obligated to undertake an independent examination of the
record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991);
2
 Counsel also presented what he termed an “arguable” point of error
that Appellant’s sentence constitutes cruel and unusual punishment in violation
of the United States and Texas Constitutions. However, Appellant failed to
preserve error by not raising this argument at the time his sentence was
imposed or in a motion for new trial. See Kim v. State, 283 S.W.3d 473, 475
(Tex. App.—Fort Worth 2009, pet. ref’d).
3
 Appellant’s eight points overlap in several respects, but Appellant
raises issues relating to the voluntariness of his open plea, alleged prosecutorial
misconduct, ineffective assistance of counsel, and improper reliance on the pre-
sentence investigation report.
4
 The State contends each of Appellant’s eight points is not preserved,
expressly refuted by the record, or not supported by the record.
2
Mays v. State, 904 S.W.2d 920, 922–23 (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 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. See Monreal v. State,
99 S.W.3d 615, 620 (Tex. Crim. App. 2003).
We have carefully reviewed counsel’s brief, Appellant’s brief, the State’s
brief, and the appellate record. We agree with counsel that this appeal is
wholly frivolous and without merit; we find nothing in the record that arguably
might support any appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28
(Tex. Crim. App. 2005). Accordingly, we grant counsel’s motion to withdraw
and affirm the trial court’s judgment.
PER CURIAM
PANEL: GARDNER, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 25, 2009
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