Victor Garcia v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-014-CR
NO. 2-09-015-CR
NO. 2-09-016-CR
VICTOR GARCIA 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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Appellant Victor Garcia was charged by indictment with two offenses of
attempted aggravated kidnapping and one offense of aggravated robbery. He
waived his right to a jury trial and entered open pleas of guilty to each offense,
and the trial court sentenced him to twenty years’ confinement for each of the
1
… See Tex. R. App. P. 47.4.
attempted aggravated kidnapping offenses and sixty years’ confinement for the
aggravated robbery offense. Garcia appeals. We will affirm.
Garcia’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, the appeal is frivolous. Counsel’s brief and
motion meet the requirements of Anders v. California by presenting a
professional evaluation of the record demonstrating why there are no arguable
grounds for relief. 386 U.S. 738, 87 S. Ct. 1396 (1967). We gave Garcia the
opportunity to file a pro se brief, and he has filed one. 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
Garcia entered an open plea of guilty, our independent review for potential error
is limited to potential jurisdictional defects, the voluntariness of Garcia’s plea,
error that is not independent of and supports the judgments of guilt, and error
2
… The State filed a brief.
2
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, counsel’s brief, Garcia’s 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.3 See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App.
2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App.
2006). Accordingly, we grant counsel’s motion to withdraw and affirm the trial
court’s judgments.
PER CURIAM
PANEL: MEIER, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 15, 2009
3
… The points asserted in Garcia’s brief regarding the voluntariness of his
guilty pleas, the sufficiency of the evidence to support his guilt for the offenses,
the ineffectiveness of trial counsel, and the legality of a police search are
without merit and do not constitute arguable grounds for relief.
3