David Garza v. State

Opinion

Opinion issued February 11, 2014.

In The

Court of Appeals

For The

First District of Texas

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.

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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).

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Do not publish. TEX. R. APP. P. 47.2(b).

Footnotes

1. 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.