Abelardo Arellano v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00601-CR

Abelardo ARELLANO,

Appellant

v.

The STATE of Texas,

Appellee

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

Trial Court No. 2004-CR-4976

Honorable Juanita Vasquez-Gardner, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 8, 2006

MOTION TO WITHDRAW GRANTED; AFFIRMED

Abelardo Arellano appeals the judgment convicting him of felony driving while intoxicated and sentencing him as a habitual offender to twenty-five years in the Texas Department of Criminal Justice - Institutional Division. We affirm the trial court's judgment.

Arellano's court-appointed appellate attorney filed a motion to withdraw and a brief in which he raises no arguable points of error and concludes this appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Arellano was provided a copy of the brief and motion to withdraw and was further informed of his right to review the record and file his own brief.

Arellano filed a pro se brief in which he contends the trial court erred in denying his motion to quash the jury panel, denying his motion to suppress, and in failing to give the jury an instruction pursuant to section 38.23 of the Texas Code of Criminal Procedure and a limiting instruction regarding evidence of alcohol found in Arellano's truck. Arellano also challenges the sufficiency of the evidence of guilt, argues that one of the felonies alleged in the indictment and to which he pleaded true may not legally be used to enhance his punishment under Chapter 12 of the Texas Penal Code, and contends both trial and appellate counsel rendered constitutionally ineffective assistance. After reviewing the record, counsel's brief, and Arellano's brief, we find no reversible error and agree with counsel the appeal is wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We therefore grant the motion to withdraw filed by Arellano's counsel and affirm the trial court's judgment. See id.; Nichols v. State, 954 S.W.2d 83, 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.).

Sarah B. Duncan , Justice

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