Elton Zalos Ortiz v. State

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-10-00411-CR

ELTON ZALOS ORTIZ APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

MEMORANDUM OPINION1

Appellant Elton Zalos Ortiz appeals from the trial court’s order denying his

motion for post-conviction DNA testing. See Tex. Code Crim. Proc. Ann. art.

64.01 (West Supp. 2010). Ortiz’s court-appointed appellate counsel has filed a

motion to withdraw as counsel and a brief in support of that motion. Counsel

avers that, in his professional opinion, the appeal is frivolous. Counsel’s brief

and motion meet the requirements of Anders v. California by presenting a

1 See Tex. R. App. P. 47.4. professional evaluation of the record demonstrating why there are no arguable

grounds for relief. 386 U.S. 738, 87 S. Ct. 1396 (1967). This court informed

Ortiz that he may file a pro se brief, but he has not done so. The State declined

to submit a brief in response to the Anders brief.

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

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

court is obligated 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.). 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 counsel’s brief. We agree with

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

the record that might arguably support the appeal. See Bledsoe v. State, 178

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

BILL MEIER JUSTICE

2 PANEL: LIVINGSTON, C.J.; MEIER, J; and DIXON W. HOLMAN (Senior Justice, Retired, Sitting by Assignment).

DO NOT PUBLISH Tex.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

DELIVERED: June 2, 2011