David Garza v. State

• Court: Court of Appeals of Texas
• Decided: February 11, 2014
• Docket: 01-12-00206-CR
• Status: Published

Opinion

Opinion issued February 11, 2014.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00206-CR ——————————— 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).