Cardae Arthur Davis v. State

• Court: Court of Appeals of Texas
• Decided: November 23, 2016
• Docket: 02-16-00074-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-16-00074-CR

CARDAE ARTHUR DAVIS APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1390523D

MEMORANDUM OPINION1

Pursuant to an open plea agreement, the trial court convicted Appellant

Cardae Arthur Davis of aggravated assault with a deadly weapon and sentenced

him to four years’ confinement. Davis appeals from that conviction and

sentence. We affirm.

1 See Tex. R. App. P. 47.4. Davis was charged with one count of aggravated robbery with a deadly

weapon, a first-degree felony, and one count of burglary. See Tex. Penal Code

Ann. §§ 29.03, 30.02 (West 2011). Davis and the State reached an open plea

agreement in which Davis agreed to plead guilty to the offense of aggravated

assault with a deadly weapon, a second-degree felony and, as charged, a lesser-

included offense of aggravated robbery with a deadly weapon. See Tex. Penal

Code Ann. § 22.02(b) (West 2011); Zapata v. State, 449 S.W.3d 220, 224–25

(Tex. App.—San Antonio 2014, no pet.). In exchange, the State agreed to waive

the burglary count and to dismiss two other causes that were pending against

him. Pursuant to the agreement, Davis pleaded guilty to aggravated assault with

a deadly weapon, and after admonishing Davis in writing, the trial court accepted

his guilty plea and recessed the proceeding for a presentence investigation

report to be completed. After the presentence investigation report was prepared,

the trial court held a sentencing hearing, found Davis guilty of aggravated assault

with a deadly weapon, and sentenced him to four years’ confinement. Davis now

appeals.2

2 We note that the trial court’s certification of Davis’s right to appeal in this case appears to show that the trial court first noted that this “is a plea-bargain case, and the defendant has NO right to appeal.” See Tex. R. App. P. 25.2. However, the trial court marked through that notation and instead certified that this “is not a plea-bargain case, and the defendant has the right of appeal.” We pause to clarify that the open plea agreement negotiated between Davis and the State recited above—commonly referred to as a charge bargain—constituted a plea bargain affecting punishment, and consequently, Davis could appeal only (1) those matters that were raised by written motion filed and ruled on before trial

2 Davis’s court-appointed appellate counsel has filed a motion to withdraw

as counsel, accompanied by an Anders brief in support of that motion. See

Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). In the brief, counsel

states that in his professional opinion, this appeal is frivolous and without merit.

After Davis’s counsel filed his motion to withdraw and Anders brief, we notified

Davis and invited him to file a pro se response. Neither Davis nor the State filed

a response to counsel’s motion to withdraw or Anders brief.

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

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

have an obligation to undertake an independent examination of the record.

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.). In this

evaluation, we consider the record, the arguments raised in the Anders brief, and

any issues the appellant points out in his pro se response. See United States v.

Wagner, 158 F.3d 901, 902 (5th Cir. 1998); In re Schulman, 252 S.W.3d 403,

408–09 (Tex. Crim. App. 2008) (orig. proceeding).

We have carefully reviewed the record and counsel’s brief. We agree with

counsel that this appeal is wholly frivolous and without merit; we find nothing in

the record that arguably might support an appeal. See Bledsoe v. State,

178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005); see also Meza v. State,

or (2) after getting the trial court’s permission. See Tex. R. App. P. 25.2(a)(2); Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003).

3 206 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 judgment.

/s/ Lee Gabriel

LEE GABRIEL JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

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

DELIVERED: November 23, 2016