David Garza v. State ( 2014 )

Opinion issued February 11, 2014.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00206-CR
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DAVID GARZA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 1297051
MEMORANDUM OPINION
A jury found appellant, David Garza, guilty of murder and assessed
punishment at thirty-five years’ confinement. See TEX. PENAL CODE ANN.
§ 19.02(b) (West 2011). Appellant timely filed a notice of appeal.
Appellant’s appointed counsel on appeal has filed a motion to withdraw,
along with a brief stating that the record presents no reversible error and the appeal
is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct.
1396 (1967). Counsel’s brief meets the Anders requirements by presenting a
professional evaluation of the record and supplying us with references to the record
and legal authority. 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State, 573
S.W.2d 807, 812–13 (Tex. Crim. App. 1978). Counsel indicates that she has
thoroughly reviewed the record and is unable to advance any grounds of error that
warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State,
193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
In his pro se response, appellant contends that the trial court deprived him of
a peremptory challenge during voir dire because he was forced to use a peremptory
challenge to remove an assistant district attorney from the venire panel and that
trial counsel was ineffective because he did not request a strike for cause and failed
to raise the error in the trial court. Appellant also contends that the trial court
abused its discretion in (1) overruling his objections to admission of photographs
and (2) failing to grant a mistrial based on allegedly improper questions posed to
him by the State. Finally, he contends that he needs additional time to develop a
ground for relief arising from a letter received post-trial from the Harris County
district attorney concerning a police department DNA technician.
2
We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, there are no arguable grounds
for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at
1400 (emphasizing that reviewing court—and not counsel—determines, after full
examination of proceedings, whether appeal is wholly frivolous); Garner v. State,
300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine
whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824,
826–27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing
court determines whether arguable grounds exist by reviewing entire record). We
note that an appellant may challenge a holding that there are no arguable grounds
for appeal by filing a petition for discretionary review in the Texas Court of
Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.
We affirm the judgment of the trial court and grant counsel’s motion to
withdraw.1 Attorney Patti Sedita must immediately send appellant the required
notice and file a copy of the notice with the Clerk of this Court. See TEX. R. APP. P.
6.5(c).
PER CURIAM
Panel consists of Justices Jennings, Higley and Sharp.
1
Appointed counsel still has a duty to inform appellant of the result of this appeal
and that he may, on his own, pursue discretionary review in the Texas Court of
Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App.
1997).
3
Do not publish. TEX. R. APP. P. 47.2(b).
4