Samuel Luna Jr., Appellant v. The State of Texas State (2016)

MEMORANDUM OPINION 1

Appellant Samuel Luna Jr. appeals his assault-on-a-family-member convictions in cause numbers 02–15–00110–CR and 02–15–00111–CR and his conviction for violation of a protective order in cause number 02–15–00112–CR.  See Tex. Penal Code Ann. §§ 22.01(b)(2)(A), 25.07(a), (g) (West Supp.2015). The first two offenses alleged that Luna had previously been convicted of assault on a family member on August 15, 2005, and all three indictments contained habitual offender notices alleging two additional prior convictions for assault on a family member.  Luna made open pleas of guilty to these offenses, and the trial court sentenced him to fifteen years' confinement for each, to be served concurrently.²  See generally id. §§ 12.33, .34 (West 2011), § 12.42(a), (d) (West Supp.2015) (setting out punishment ranges).

Luna's court-appointed appellate counsel has filed a motion to withdraw as counsel and a brief in support of that motion.  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.  386 U.S. 738, 87 S.Ct. 1396 (1967).  Luna had the opportunity to file a pro se brief but has not done so.  The State did not file a brief.

Once an appellant's court-appointed attorney 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.  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.).  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).

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 might arguably support the appeal.  See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex.Crim.App.2005);  see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex.Crim.App.2006).  Accordingly, we grant counsel's motion to withdraw and affirm the trial court's judgment.

FOOTNOTES

1.   See Tex.R.App. P. 47.4.

2.   Both family violence indictments included that Luna had a prior conviction for assault with bodily injury against a member of his family or household from August 15, 2005, in cause number 0957727D.  Each of these indictments also contained a habitual offender notice alleging that Luna had an “assault bodily injury-family member” conviction from January 22, 2009, in cause number 1115782D and from June 17, 2003, in cause number 0860582D.  The violationof-protective-order offense also contained a habitual offender notice, but the State waived it for that offense.

BONNIE SUDDERTH, JUSTICE