David Martinez v. State

• Court: Court of Appeals of Texas
• Decided: July 29, 2008
• Docket: 13-07-00012-CR
• Status: Published

Opinion

NUMBER 13-07-00012-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DAVID MARTINEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 117th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Benavides Memorandum Opinion by Chief Justice Valdez

Appellant, David Martinez, appeals from two judgments of conviction for the

offenses of intoxication manslaughter and intoxication assault. See TEX . PENAL CODE ANN .

§§ 49.07, 49.08 (Vernon Supp. 2007). Appellant entered a plea of nolo contendere to each

of the two indictments, without an agreed sentencing recommendation. The trial court

found appellant guilty in both cases. After a pre-sentence investigation, the trial court

assessed punishment at forty years for the intoxication manslaughter count and twenty years for the intoxication assault count. The trial court ordered the sentences to run

concurrently. Appellant’s counsel has filed a brief with this Court asserting there is no

basis for appeal. We agree, and affirm the trial court’s judgment.

I. COMPLIANCE WITH ANDERS V . CALIFORNIA

Appellant’s counsel filed an Anders brief in which she has concluded that there is

nothing that merits review on direct appeal. Anders v. California, 386 U.S. 738, 744

(1967). Appellant’s brief meets the requirements of Anders. Id. at 744-45; see High v.

State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). In compliance with

Anders, counsel presented a professional evaluation of the record and referred this Court

to what, in her opinion, are all issues which might arguably support an appeal. See

Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see

also High, 573 S.W.2d at 812. Counsel informed this Court that: (1) she diligently read and

reviewed the record and the circumstances of appellant’s conviction; (2) she believes that

there are no arguable grounds to be advanced on appeal; and (3) she forwarded to

appellant a copy of the brief filed in support of his motion to withdraw, with a letter

informing appellant of his right to review the record and file a pro se brief. See Anders, 386

U.S. at 744-45; see also Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991);

High, 573 S.W.2d at 813.

Appellant was provided a copy of the record and has submitted a pro se brief. In

it, he raises three issues from claims of an involuntary plea, prosecutorial misconduct, and

ineffective assistance of counsel.

II. INDEPENDENT REVIEW

The Supreme Court advised appellate courts that upon receiving a “frivolous appeal”

brief, they must conduct “a full examination of all the proceedings to decide whether the

2 case is wholly frivolous.” Penson v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93

S.W.3d 922, 926 (Tex. App.–Corpus Christi 2003, no pet.). Accordingly, we have carefully

reviewed the record, counsel’s brief, and appellant’s pro se brief, and have found nothing

that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826 (Tex.

Crim. App. 2005); Stafford, 813 S.W.2d at 509. We agree with counsel that the appeal is

wholly frivolous and without merit. See Bledsoe, 178 S.W.3d at 827-28 (“Due to the nature

of Anders briefs, by indicating in the opinion that it considered the issues raised in the

briefs and reviewed the record for reversible error but found none, the court of appeals met

the requirements of Texas Rule of Appellate Procedure 47.1.”). Accordingly, we affirm the

judgment of the trial court.

III. MOTION TO WITHDRAW

An appellate court may grant counsel’s motion to withdraw in connection with an

Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); Stafford,

813 S.W.2d at 511 (noting that Anders brief should be filed with request to withdraw from

case); see In re Shulman 252 S.W.3d 403, *21-22 (Tex. Crim. App. 2008) (official pinpoint

not designated). We grant counsel’s motion to withdraw. We order counsel to advise

appellant promptly of the disposition of the case and the availability of discretionary review.

See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).

ROGELIO VALDEZ Chief Justice

Do not publish. TEX . R. APP. P. 47.2(b). Memorandum Opinion delivered and filed this the 29th day of July, 2008.