Gilbert Rodriquez v. State

• Court: Court of Appeals of Texas
• Decided: January 24, 2013
• Docket: 02-11-00471-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-11-00471-CR

Gilbert Rodriquez § From Criminal District Court No. 3

§ of Tarrant County (1223419D)

v. § January 24, 2013

§ Per Curiam

The State of Texas § (nfp)

JUDGMENT

This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.

SECOND DISTRICT COURT OF APPEALS

PER CURIAM COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

GILBERT RODRIQUEZ APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

MEMORANDUM OPINION1 ----------

Appellant Gilbert Rodriquez entered an open plea of guilty to one count of

burglary of a habitation. After an evidentiary hearing in which Appellant was the

only witness and consideration of a presentence investigation report, the trial

court sentenced Appellant to eighteen years’ confinement, two years less than

the statutorily-allowed maximum sentence. See Tex. Penal Code Ann. §

12.33(a) (West 2011).

1 See Tex. R. App. P. 47.4.

2 Appellant’s court-appointed appellate counsel has filed a motion to

withdraw as counsel and a brief in support of that motion. In the brief, counsel

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

and motion meet the requirements of Anders v. California, 386 U.S. 738, 87

S. Ct. 1396 (1967), by presenting a professional evaluation of the record and

demonstrating why there are no arguable grounds for appeal. 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.). This court gave Appellant

the opportunity to file a brief on his own behalf, but he did not do so. 2 The State

did not file a brief.

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

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

are obligated to undertake an independent examination of the record to see if

there is any arguable ground that may be raised on his behalf. See Stafford, 813

S.W.2d at 511; Mays, 904 S.W.2d at 923. 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).

2 In January 2013, appellant sent this court a letter in which he expressed his belief that he had no chance to succeed in this appeal and seemed to state his desire to dismiss the appeal. The letter, however, did not comply with the requirements for a motion to dismiss a criminal appeal. See Tex. R. App. P. 42.2(a). Thus, assuming that appellant intended for his letter to serve as a motion to dismiss, we deny the motion.

3 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 arguably might support any appeal. See Bledsoe v. State, 178

S.W.3d 824, 827 (Tex. Crim. App. 2005); see also Garner v. State, 300 S.W.3d

763, 767 (Tex. Crim. App. 2009). Accordingly, we grant the motion to withdraw

and affirm the trial court’s judgment.

PER CURIAM

PANEL: GARDNER, J.; LIVINGSTON, C.J.; and GABRIEL, J.

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

DELIVERED: January 24, 2013