Mary Ayala v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-09-00490-CR
Raul Ramirez Cardenas, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. D-1-DC-08-207490, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found Raul Cardenas guilty of driving while intoxicated. See Tex. Penal Code
Ann. § 49.04 (West 2003) (defining crime of driving while intoxicated). The indictment alleged that
Cardenas had previously been convicted of two prior driving-while-intoxicated offenses, which
elevated the crime charged to a felony. See id. § 49.09(b) (West Supp. 2009) (elevating offense level
for prior convictions). The indictment also contained an enhancement section alleging that Cardenas
had previously been convicted of two prior felony offenses. See id. § 12.42(d) (West Supp. 2009)
(elevating permissible punishments due to prior felony convictions). After the jury found Cardenas
guilty, the district court held a punishment hearing. During the hearing, Cardenas pleaded “true” to
the enhancement allegations. Ultimately, the district court determined that the prior allegations were
true and imposed a punishment of twenty-five years’ imprisonment. Shortly after the punishment
was assessed, Cardenas appealed the district court’s judgment.
On appeal, Cardenas’s attorney has filed a brief asserting that the appeal is frivolous
and without merit and a motion seeking leave to withdraw as Cardenas’s counsel. Because the brief
presents a professional evaluation of the record and demonstrates that there are no arguable grounds
to be advanced, the brief meets the requirements articulated in Anders v. California, 386 U.S. 738,
743-44 (1967). See Penson v. Ohio, 488 U.S. 75, 80 (1988); High v. State, 573 S.W.2d 807, 811-13
(Tex. Crim. App. 1978). Further, Cardenas’s attorney sent Cardenas a copy of the Anders brief
and advised him that he had the right to examine the record and file a pro se brief. See Anders,
386 U.S. at 744; Jackson v. State, 485 S.W.2d 553, 553 (Tex. Crim. App. 1972). Cardenas has not
filed a pro se brief.
We have considered the record and the brief filed by Cardenas’s attorney and agree
that the appeal is frivolous and without merit. After reviewing the evidence presented to the jury and
the procedures that were observed, we find nothing in the record that might arguably
support the appeal. Accordingly, we grant Cardenas’s attorney’s motion to withdraw and affirm
Cardenas’s conviction.1
1
No substitute counsel will be appointed. Should Cardenas wish to seek further review of
his case by the court of criminal appeals, he must either retain an attorney to file a petition for
discretionary review or file a pro se petition for discretionary review. See generally Tex. R. App.
P. 68-79 (governing proceedings in Texas Court of Criminal Appeals). Any petition for
discretionary review must be filed within thirty days from the date of either this opinion or the date
this Court overruled the last timely motion for rehearing filed. See id. R. 68.2. The petition must
be filed with this Court, after which it will be forwarded to the court of criminal appeals along with
the rest of the filings in this case. See id. R. 68.3, 68.7. Any petition for discretionary review should
comply with rules 68.4 and 68.5 of the rules of appellate procedure. See id. R. 68.4, 68.5.
2
__________________________________________
David Puryear, Justice
Before Chief Justice Jones, Justices Puryear and Pemberton
Affirmed
Filed: August 19, 2010
Do Not Publish
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