HENRY LUNA v. THE STATE OF TEXAS--Appeal from 148th District Court of Nueces County

NUMBER 13-00-727-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

_____________________________________________________________

HENRY LUNA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

______________________________________________________________

On appeal from the 148th District Court of Nueces County, Texas.

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MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Castillo

Opinion by Justice Hinojosa

Appellant, Henry Luna, was charged by indictment with the offense of driving while intoxicated ("DWI"), (1) enhanced to a third-degree felony because of three prior DWI convictions. (2) Appellant was also indicted as an habitual felony offender because he had been previously convicted for aggravated assault on a peace officer (3) and another felony DWI. (4) After a jury found him guilty, appellant pleaded true to the habitual felony offender allegations. The trial court assessed appellant's punishment at thirty-five years imprisonment.

A. Appellant's Appeal

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here. See Tex. R. App. P. 47.1.

Appellant's attorney has filed a brief in which he states that he has reviewed the clerk's record and reporter's record and concludes that appellant's appeal is frivolous and without merit. Anders v. California, 386 U.S. 738 (1967). The brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal. See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). In the brief, appellant's attorney also states that he has informed appellant of his right to review the appellate record and to file a pro se brief.

On June 15, 2001, appellant informed this Court that he intended to file a pro se brief, and requested a copy of the clerk's record and the reporter's record. Appellant was provided with both records. However, he has failed to file a brief with this Court.

Upon receiving a "frivolous appeal" brief, appellate courts must conduct "a full examination of all the proceeding[s] to decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S. 75, 80 (1988). We have carefully reviewed the appellate record and counsel's brief and have found nothing in the record that might arguably support the appeal. See Stafford, 813 S.W.2d at 511. We agree with appellant's counsel that the appeal is wholly frivolous and without merit.

The judgment of the trial court is affirmed.

B. Counsel's Motion to Withdraw

In accordance with Anders, appellant's attorney has asked permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744. We grant such permission. We order appellant's attorney to notify appellant of the disposition of this appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

13th day of December, 2001.

1. See Tex. Pen. Code Ann. art. 49.04(a)(Vernon Supp. 2001).

2. See Tex. Pen. Code Ann. art. 49.09(b)(Vernon Supp. 2001).

3. See Tex. Pen. Code Ann. art. 22.01(a), (b)(Vernon 1994).

4. See Tex. Pen. Code Ann. art. 12.41(d)(Vernon 1994).