Bobby Fortune v. State

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-13-00028-CR

BOBBY FORTUNE APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION1

Appellant Bobby Fortune was indicted for possessing heroin. He pled

guilty under the terms of a plea-bargain agreement in exchange for nine months’

confinement in a state jail. The plea proceedings were not recorded. The trial

court granted permission for Appellant to appeal, and Appellant timely filed notice

of appeal. Appellant’s court-appointed appellate counsel has filed a motion to

1 See Tex. R. App. P. 47.4. withdraw and a brief in support of that motion. In counsel’s brief, he certifies that,

in his professional opinion, the appeal is frivolous. Counsel’s brief and motion

meet the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396

(1967), by presenting a professional evaluation of the record and demonstrating

why there are no arguable grounds for appeal. See Stafford v. State, 813

S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State, 904 S.W.2d 920, 922–

23 (Tex. App.—Fort Worth 1995, no pet.). We gave Appellant the opportunity to

file a brief on his own behalf by a date certain, which has since come and gone

without Appellant’s having availed himself of the opportunity. By letter, the State

acknowledges having received Appellant’s counsel’s brief and informs us that it

will not file its own brief in response.

Once an appellant’s court-appointed counsel files a motion to withdraw on

the ground that the appeal is frivolous and fulfills the requirements of Anders, we

are obligated to undertake an independent examination of the record to see if

there is any arguable ground that may be raised on the appellant’s behalf. See

Stafford, 813 S.W.2d at 511; Mays, 904 S.W.2d at 923. 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).

We have carefully reviewed the record and the brief filed by Appellant’s

counsel. We agree with counsel that this appeal is wholly frivolous and without

merit; we find nothing in the record that arguably might support any appeal. See

Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005); see also Garner

2 v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009). Accordingly, we grant the

motion to withdraw and affirm the trial court’s judgment.

PER CURIAM

PANEL: GARDNER, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: May 15, 2014