Irungu Bakari v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-345-CR
IRUNGU BAKARI APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Introduction
Appellant Irungu Bakari appeals his convicion for failing to label
recordings. 2 We affirm Bakari’s conviction, and we grant his appellate
1
… See Tex. R. App. P. 47.4.
2
… At the time of the trial court’s judgment, section 35.94 of the
business and commerce code contained the offense supporting Bakari’s
conviction; the legislature repealed section 35.94 in 2007, and the effective
date of the repeal was April 1, 2009. See Act of May 22, 1989, 71st Leg.,
R.S., ch. 339 § 1, sec. 35.94, 1989 Tex. Gen. Laws 1305, 1307, repealed by
Act of May 15, 2007, 80th Leg., R.S., ch. 885, §§ 2.47(a)(1), 4.02, 2007
counsel’s motion to withdraw on the basis of counsel’s Anders brief.
See Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400
(1967).
Background Facts
In September 2007, a Tarrant County grand jury indicted Bakari with two
counts of failing to label DVD recordings. 3 After the parties filed various pretrial
documents, Bakari pled guilty and asked the trial court to assess his sentence
after it reviewed a presentence investigation report.4
At a sentencing hearing more than two months later, the trial court
acknowledged that it had reviewed Bakari’s presentence investigation report,
Tex. Gen. Laws 1905, 2082, 2163. The offense now appears in section
641.054 of that same code. See Tex. Bus. & Com. Code Ann. § 641.054
(Vernon 2009).
3
… The indictment alleged that for commercial purposes, Bakari possessed
at least 65 DVDs in a 180-day period that did not clearly and conspicuously
disclose the actual name and address of the manufacturer and the name of the
performer or group. See Tex. Bus. & Com. Code Ann. § 641.054(b)(1)(A).
This offense carries punishment of up to five years’ confinement. See id. §
641.054(b)(1).
4
… Bakari received the trial court’s oral and written admonishments about
the consequences of his plea, and he affirmed that he had entered the plea and
had waived his constitutional rights freely and voluntarily. In connection with
Bakari’s guilty plea in this case, the trial court (with the State’s consent) barred
prosecution of similar crimes in other cause numbers.
2
and it heard testimony from an investigator and from Bakari. 5 The trial court
then heard closing arguments from the parties, and it sentenced Bakari to four
years’ confinement and a $10,000 fine. Bakari filed his notice of appeal.
In December 2008, Bakari’s appointed appellate counsel filed a motion to
withdraw from Bakari’s representation; he concurrently filed a letter that he
sent to Bakari (relaying his opinion to Bakari that Bakari had no legitimate
appellate issues) and a brief that meets the requirements of Anders by
presenting a professional evaluation of the record and demonstrating why the
appeal is frivolous. See Anders, 386 U.S. at 744–45, 87 S. Ct. at 1400; In re
Schulman, 252 S.W.3d 403, 406–12 (Tex. Crim. App. 2008) (orig.
proceeding). Although we have given Bakari an opportunity to file a pro se
brief, he has not done so.
Our Duties Under Anders
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.
5
… Among other things, the investigator testified that he saw Bakari
selling what appeared to be illegally-made DVDs about a week before the
sentencing hearing. Bakari testified about his motivation of selling the DVDs,
which was to feed himself and his family. He admitted to lying about
information contained in the presentence investigation report, and he asked the
trial court to put him on probation.
3
Ohio 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 Bakari entered an open plea of guilty, our independent review for
potential error is limited to potential jurisdictional defects, the voluntariness of
Bakari’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); Jack v. State, 871 S.W.2d 741, 743–44
(Tex. Crim. App. 1994); Scott v. State, 86 S.W.3d 374, 375 (Tex. App.—Fort
Worth 2002, no pet.).
4
This Appeal Is Frivolous
We have carefully reviewed the record and counsel’s brief. We agree
with counsel that this appeal is wholly frivolous and without merit and that
there is nothing in the record that could arguably support the appeal.
Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005). We therefore
grant counsel’s motion to withdraw and affirm the trial court’s judgment.
PER CURIAM
PANEL: LIVINGSTON, J.; CAYCE, C.J.; and MEIER, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 25, 2009
5