Felton E. Wilson v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-08-046-CR
2-08-047-CR
2-08-048-CR
2-08-049-CR
FELTON E. WILSON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Introduction
Appellant Felton E. Wilson appeals his four drug-related convictions.
We affirm his convictions, and we grant his appellate counsel’s motion to
1
… See Tex. R. App. P. 47.4.
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
A Tarrant County grand jury issued four indictments against appellant for
charges of possession of marijuana of more than four ounces but less than five
pounds, 2 possession of a controlled substance (methylenedioxy
methamphetamine) of more than four but less than four hundred grams,3
possession of a controlled substance (cocaine) of less than one gram, 4 and
possession with intent to deliver a controlled substance (cocaine) of more than
four but less than two hundred grams.5 The indictments related to the
marijuana and the cocaine of less than one gram each contained an
enhancement paragraph alleging that appellant had prior convictions that
allowed him to be punished for those state jail felonies at a third degree felony
level. See Tex. Health & Safety Code Ann. §§ 481.115(b), 481.121(b)(3);
Tex. Penal Code Ann. § 12.42(a)(1) (Vernon Supp. 2008).
2
… See Tex. Health & Safety Code Ann. § 481.121(b)(3) (Vernon 2003).
3
… See id. § 481.103(a)(1) (Vernon Supp. 2008), § 481.116(d) (Vernon
2003).
4
… See id. § 481.102(3)(D) (Vernon Supp. 2008), § 481.115(b) (Vernon
2003).
5
… See id. § 481.102(3)(D), § 481.112(d) (Vernon 2003).
2
After the State filed various pretrial documents, appellant entered an open
plea of guilty to each charge. While entering the guilty pleas, appellant received
admonishments, waived constitutional and statutory rights, and made judicial
confessions to “each and every act alleged” in the indictments, specifically
including the enhancement paragraphs. The trial court accepted his pleas,
found him guilty of each of the four charges, and deferred sentencing so that
a presentence investigation could be conducted.
At a sentencing hearing in February 2008, the trial court accepted the
presentence investigation report 6 into evidence without objection, heard brief
testimony from appellant’s pastor, and listened to closing arguments from the
parties. The trial court then sentenced appellant to ten years’ confinement on
each of the charges related to the marijuana and the cocaine under one gram,
and it sentenced him to twenty years’ confinement on the other cocaine charge
and also on the methylenedioxy methamphetamine offense. The trial court
ordered these sentences to run concurrently.
Appellant filed notices of these appeals. In July 2008, appellant’s
appellate counsel filed a motion to withdraw that expressed his determination
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… The presentence investigation report detailed the facts related to
appellant’s charges, recited his criminal record, explained his family background
and personal history, and recommended that he be confined.
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that there were no meritorious grounds to continue the appeals; he concurrently
filed a brief that satisfies the requirements of Anders by presenting a
professional evaluation of the record demonstrating why there are no arguable
grounds for relief. 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). Appellant filed
a pro se letter brief.7
Our Duties under Anders
As the reviewing court, we must conduct an independent evaluation of
the record to determine whether counsel is correct in concluding that the
appeals are 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 appellant entered open pleas of guilty, our independent review for
potential error is limited to jurisdictional defects, the voluntariness of appellant’s
pleas, error that is not independent of and supports the judgment of guilt, and
7
… Appellant’s pro se brief provides four reasons why he believes his trial
counsel was ineffective. However, the factual allegations contained in his brief
are not supported by the record; therefore, they cannot form a basis for us to
determine whether his claims have merit. See Mata v. State, 226 S.W.3d 425,
432 (Tex. Crim. App. 2007); Salinas v. State, 163 S.W.3d 734, 740 (Tex.
Crim. App. 2005).
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error occurring after entry of the guilty pleas. 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.).
These Appeals are Frivolous
We have carefully reviewed the record, counsel’s Anders brief, and
appellant’s pro se 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. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex.
Crim. App. 2005). We therefore grant counsel’s motion to withdraw and affirm
the trial court’s judgments.
TERRIE LIVINGSTON
JUSTICE
PANEL: LIVINGSTON, GARDNER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 26, 2009
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