Raul Olivarez, III v. State

• Court: Court of Appeals of Texas
• Decided: July 16, 2003
• Docket: 04-02-00130-CR
• Status: Published

Opinion

MEMORANDUM OPINION No. 04-02-00130-CR Raul OLIVAREZ, III, Appellant v. The STATE of Texas, Appellee From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2001CR0711B Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. López, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 16, 2003

AFFIRMED

On January 28, 2002, Raul Olivarez pled nolo contendere to committing the offense of burglary of a habitation and was sentenced to eight years imprisonment and a $1000 fine in accordance with the terms of his plea-bargain agreement. Olivarez filed a timely notice of appeal. His court-appointed appellate attorney filed a brief in which she raises two arguable points of error, but nonetheless concludes that this appeal is frivolous and without merit. Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

Olivarez filed a pro se brief, arguing that he was denied effective assistance of counsel and that the State failed to follow the plea-bargain agreement. ⁽¹⁾ We have reviewed the record and counsel's brief. We agree that the appeal is frivolous and without merit. The judgment of the trial court is affirmed.

Do not publish

1. The plea-bargain agreement states that the "State will not file deadly conduct in case JN #941641." At the sentencing hearing, Olivarez's counsel and counsel for the State agreed that the deadly conduct charge had been erroneously filed. To correct the error, the State presented the trial court with a dismissal form, and the charge was dismissed. The trial court then sentenced Olivarez to eight years imprisonment and a $1000 fine in accordance with the plea-bargain agreement. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2003). Even though Olivarez knew at the time of sentencing that the State had erroneously filed the charge in case number 941641, he still asked the court to sentence him in accordance with the plea-bargain agreement. And at no time did Olivarez move to withdraw his plea. Moreover, the charge was dismissed. Nothing in the record indicates that Olivarez was harmed by the State erroneously filing the charge. Olivarez contends that he has been harmed because the State's mere filing of the charge is "on his criminal history record." There is nothing in the record to indicate that the filing of the charge is "on [Olivarez's] criminal history record." We, therefore, conclude that Olivarez's argument is frivolous.