Opinion
No. 02-10-00285-CR
Delivered: March 10, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
Appealed from Criminal District Court No. 3 of Tarrant County.
PANEL: DAUPHINOT, WALKER, and McCOY, JJ.
MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Pursuant to a charge bargain in which he also waived his right of appeal, Appellant Antonio Manuel Ramirez pled guilty to one count of online solicitation of a minor under fourteen years of age, and the State waived five counts of online solicitation of a minor under fourteen years of age. The trial court admitted a copy of the plea agreement into evidence. The trial court convicted Appellant of online solicitation of a minor under fourteen years of age and sentenced him to eleven years' confinement. After pronouncing sentence, the trial court stated,
You have a right to appeal my decision to the Second Court of Appeals located here in Fort Worth, Texas. You would do that by filing a written notice of appeal or motion for new trial within 30 days of today's date.
If you cannot afford a lawyer to represent you on the appeal, I will appoint one for you at no cost to you.We construe these statements of the trial court as granting Appellant permission to appeal. We also note that while the trial court's certification incorrectly indicates that this is not a plea-bargained case, it does provide that Appellant has the right of appeal. Appellant's court-appointed 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 by presenting a professional evaluation of the record demonstrating why there are no arguable grounds for relief. Although we gave them the opportunity to respond, neither the State nor Appellant filed a response to the Anders brief. After 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, this court is obligated to undertake an independent examination of the record to see if there is any arguable ground that may be raised on his behalf. Only then may we grant counsel's motion to withdraw. We have carefully reviewed counsel's brief, which discusses two potential appellate grounds, and the appellate record. We agree with counsel that this appeal is wholly frivolous and without merit; we find nothing in the appellate record that arguably might support this appeal. Accordingly, we grant counsel's motion to withdraw and affirm the trial court's judgment.
See Tex. Penal Code Ann. § 3.03(b)(2)(A) (Vernon Supp. 2010) (expressly allowing stacking of sentences for convictions of certain sexual offenses against children, including online solicitation of a minor); id. § 33.021 (providing elements of online solicitation of a minor); see also Kennedy v. State, 297 S.W.3d 338, 342 (Tex. Crim. App. 2009) (applying Shankle analysis to allow appeal of ruling on motion to suppress); Shankle v. State, 119 S.W.3d 808, 812-13 (Tex. Crim. App. 2003) (holding that charge bargain that "effectively puts a cap on punishment" is a bargain governed by rule 25.2(a)(2)).
See Tex. R. App. P. 25.2(a)(2); Kennedy, 297 S.W.3d at 342.
386 U.S. 738, 87 S. Ct. 1396 (1967).
See Stafford v. State, 813 S.W.2d 503, 510-11 n. 3 (Tex. Crim. App. 1991).
See id. at 511.
See Penson v. Ohio, 488 U.S. 75, 82-83, 109 S. Ct. 346, 351 (1988).
See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005).