Felton E. Wilson v. State

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NOS. 2-08-046-CR 2-08-047-CR 2-08-048-CR 2-08-049-CR

FELTON E. WILSON APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION 1

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Introduction

Appellant Felton E. Wilson appeals his four drug-related convictions.

We affirm his convictions, and we grant his appellate counsel’s motion to

1 … See Tex. R. App. P. 47.4. withdraw on the basis of counsel’s Anders brief. See Anders v. California, 386

U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967).

Background Facts

A Tarrant County grand jury issued four indictments against appellant for

charges of possession of marijuana of more than four ounces but less than five

pounds, 2 possession of a controlled substance (methylenedioxy

methamphetamine) of more than four but less than four hundred grams,3

possession of a controlled substance (cocaine) of less than one gram, 4 and

possession with intent to deliver a controlled substance (cocaine) of more than

four but less than two hundred grams.5 The indictments related to the

marijuana and the cocaine of less than one gram each contained an

enhancement paragraph alleging that appellant had prior convictions that

allowed him to be punished for those state jail felonies at a third degree felony

level. See Tex. Health & Safety Code Ann. §§ 481.115(b), 481.121(b)(3);

Tex. Penal Code Ann. § 12.42(a)(1) (Vernon Supp. 2008).

2 … See Tex. Health & Safety Code Ann. § 481.121(b)(3) (Vernon 2003). 3 … See id. § 481.103(a)(1) (Vernon Supp. 2008), § 481.116(d) (Vernon 2003). 4 … See id. § 481.102(3)(D) (Vernon Supp. 2008), § 481.115(b) (Vernon 2003). 5 … See id. § 481.102(3)(D), § 481.112(d) (Vernon 2003).

2 After the State filed various pretrial documents, appellant entered an open

plea of guilty to each charge. While entering the guilty pleas, appellant received

admonishments, waived constitutional and statutory rights, and made judicial

confessions to “each and every act alleged” in the indictments, specifically

including the enhancement paragraphs. The trial court accepted his pleas,

found him guilty of each of the four charges, and deferred sentencing so that

a presentence investigation could be conducted.

At a sentencing hearing in February 2008, the trial court accepted the

presentence investigation report 6 into evidence without objection, heard brief

testimony from appellant’s pastor, and listened to closing arguments from the

parties. The trial court then sentenced appellant to ten years’ confinement on

each of the charges related to the marijuana and the cocaine under one gram,

and it sentenced him to twenty years’ confinement on the other cocaine charge

and also on the methylenedioxy methamphetamine offense. The trial court

ordered these sentences to run concurrently.

Appellant filed notices of these appeals. In July 2008, appellant’s

appellate counsel filed a motion to withdraw that expressed his determination

6 … The presentence investigation report detailed the facts related to appellant’s charges, recited his criminal record, explained his family background and personal history, and recommended that he be confined.

3 that there were no meritorious grounds to continue the appeals; he concurrently

filed a brief that satisfies the requirements of Anders by presenting a

professional evaluation of the record demonstrating why there are no arguable

grounds for relief. See Anders, 386 U.S. at 744–45, 87 S. Ct. at 1400; In re

Schulman, 252 S.W.3d 403, 406–12 (Tex. Crim. App. 2008). Appellant filed

a pro se letter brief.7

Our Duties under Anders

As the reviewing court, we must conduct an independent evaluation of

the record to determine whether counsel is correct in concluding that the

appeals are frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim.

App. 1991); Mays v. State, 904 S.W.2d 920, 923 (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).

Because appellant entered open pleas of guilty, our independent review for

potential error is limited to jurisdictional defects, the voluntariness of appellant’s

pleas, error that is not independent of and supports the judgment of guilt, and

7 … Appellant’s pro se brief provides four reasons why he believes his trial counsel was ineffective. However, the factual allegations contained in his brief are not supported by the record; therefore, they cannot form a basis for us to determine whether his claims have merit. See Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).

4 error occurring after entry of the guilty pleas. See Monreal v. State, 99 S.W.3d

615, 620 (Tex. Crim. App. 2003); Young v. State, 8 S.W.3d 656, 666–67

(Tex. Crim. App. 2000); Jack v. State, 871 S.W.2d 741, 743–44 (Tex. Crim.

App. 1994); Scott v. State, 86 S.W.3d 374, 375 (Tex. App.—Fort Worth

2002, no pet.).

These Appeals are Frivolous

We have carefully reviewed the record, counsel’s Anders brief, and

appellant’s pro se brief. We agree with counsel that these appeals are wholly

frivolous and without merit. We find nothing in the record that might arguably

support the appeals. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex.

Crim. App. 2005). We therefore grant counsel’s motion to withdraw and affirm

the trial court’s judgments.

TERRIE LIVINGSTON JUSTICE

PANEL: LIVINGSTON, GARDNER, and MCCOY, JJ.

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

DELIVERED: February 26, 2009