Gabino De La Cerda v. State

• Court: Court of Appeals of Texas
• Decided: May 10, 2006
• Docket: 04-05-00093-CR
• Status: Published

Opinion

MEMORANDUM OPINION

No. 05-05-00093-CR

Gabino DE LA CERDA,

Appellant

v.

The STATE of Texas ,

Appellee

From the 399th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-CR-8135

Honorable Juanita Vasquez-Gardner , Judge Presiding

Opinion by: Alma L. López, Chief Justice

Sitting: Alma L. López, Chief Justice

Sandee Bryan Marion , Justice

Phylis J. Speedlin , Justice

Delivered and Filed: May 10, 2006

AFFIRMED

Gabino De La Cerda was convicted by a jury of felony driving while intoxicated and sentenced by the trial court as a habitual offender to twenty-five years imprisonment. De La Cerda's court-appointed attorney filed a brief containing a professional evaluation of the record in accordance with Anders v. California, 386 U.S. 738 (1967). Counsel concludes that the appeal has no merit. Counsel provided De La Cerda with a copy of the brief and informed him of his right to review the record and file his own brief. See Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.--San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.--San Antonio 1996, no pet.). De La Cerda filed a pro se brief asserting: (1) he was denied the constitutional right to counsel during a critical phase of the proceeding, namely the motion for new trial phase; (2) trial counsel was ineffective during the cross-examination of the State's witness; (3) the presentation of prior DWI convictions denied De La Cerda of his right to a fair trial; and (4) the evidence is factually insufficient to support a finding of guilt.

After reviewing the record, counsel's brief, and the pro se brief, we agree that the appeal is frivolous and without merit. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (noting court of appeals should not address merits of issues raised in Anders brief or pro se response but should only determine if the appeal is frivolous). The judgment of the trial court is affirmed. Appellate counsel's motion to withdraw is granted. Nichols v. State, 954 S.W.2d at 86; Bruns 924 S.W.2d at 177 n.1.

Alma L. López, Chief Justice

DO NOT PUBLISH