John A. Martinez v. State ( 2010 )

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MEMORANDUM OPINION
No. 04-09-00093-CR
John A. MARTINEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CR-5886
Honorable Philip A. Kazen, Jr., Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Steven C. Hilbig, Justice
Delivered and Filed: April 7, 2010
AFFIRMED
Appellant was found guilty of aggravated robbery, following which he filed a motion for
DNA testing, which was denied. The trial court granted appellant permission to appeal from the
denial of appellant’s motion.
Appellant’s court-appointed appellate attorney filed a brief containing a professional
evaluation of the record and demonstrating there are no arguable grounds to be advanced. Counsel
concludes the appeal is without merit. The brief meets the requirements of Anders v. California, 386
04-09-00093-CR
U.S. 738 (1967). Appellant was informed of his right to review the record. Counsel provided
defendant with a copy of the brief and advised him of his right to file a pro se brief. Appellant filed
a pro se brief asserting the trial court erred in denying his motion for DNA testing.
A court of appeals has two options when an Anders brief and a subsequent pro se brief are
filed. Upon reviewing the entire record, it may determine (1) that the appeal is wholly frivolous and
issue an opinion explaining that it finds no reversible error or (2) that there are arguable grounds for
appeal and remand the cause to the trial court for appointment of new appellate counsel. Bledsoe
v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (holding that court of appeals may address
merits of issues raised by pro se only after any arguable grounds have been briefed by new counsel).
We have carefully reviewed the entire appellate record, and we conclude there are no arguable
grounds for appeal, there is no reversible error, and the appeal is wholly frivolous. See id.
Accordingly, we affirm the trial court’s judgment, and we GRANT appellate counsel’s
motion to withdraw.1 Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.—San Antonio 1997, no pet.);
Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.).
Sandee Bryan Marion, Justice
DO NOT PUBLISH
1
… No substitute counsel will be appointed. See In re Schulman, 252 S.W .3d 403, 408 n.22 (Tex. Crim.
App. 2008). Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals,
appellant must either retain an attorney to file a petition for discretionary review or file a pro se petition for
discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either
this opinion or the last timely motion for rehearing that is overruled by this court. See T EX . R. A PP . P. 68.2. Any
petition for discretionary review must be filed with this court, after which it will be forwarded to the Texas Court of
Criminal Appeals along with the rest of the filings in this case. See T EX . R. A PP . P. 68.3. Any petition for
discretionary review must comply with the requirements of Texas Rules of Appellate Procedure 68.4.
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