Ibarra v. State

Full title: ROBERT FERNANDEZ IBARRA, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Jul 16, 2003

No. 10-02-103-CR (Tex. App. Jul. 16, 2003)

Opinion

No. 10-02-103-CR.

Opinion delivered and filed July 16, 2003. DO NOT PUBLISH.

From the 54th District Court, McLennan County, Texas, Trial Court # 2001-343-C.

Before Chief Justice Davis, Justice Vance, and Justice Gray

OPINION

TOM GRAY, Justice.

Robert Fernandez Ibarra was convicted of two counts of aggravated sexual assault. The victim was his 11 year old sister-in-law. The jury rejected Ibarra's request for community supervision and sentenced him to 99 years in prison on each count. Ibarra had previously been convicted of unlawfully carrying a weapon. We affirm.

Anders Brief

Ibarra's counsel on appeal filed an Anders brief. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). This Court was unsure whether counsel advised Ibarra that he had the right to file his own brief or whether he also provided him with a copy of the Anders brief and the record. See Sowels v. State, 45 S.W.3d 690, 694 (Tex.App.-Waco 2001, no pet.). Because Ibarra filed a pro-se brief with correct citations to the record, we did not order counsel to provide us with the required documentation. See Id. Ibarra identified three issues to review. The State filed its own brief in response to Ibarra's pro-se brief. We now decide "whether the case is . . . frivolous" as claimed by counsel. See Taulung v. State, 979 S.W.2d 854, 855 (Tex.App.-Waco 1998, no pet.). Counsel, in his brief, considers issues relevant to an appeal of a jury trial. Counsel's brief also contains references to both the record and applicable statutes, rules, and cases, and discusses why counsel concludes that the appeal is frivolous. See Sowels, 45 S.W.3d at 691. We have independently reviewed the record and agree that there are no issues "which might arguably support an appeal." Id. at 692. Because we have independently considered and concluded that the appeal is frivolous, we necessarily have considered and concluded that all the issues raised in Ibarra's pro se brief, including his first issue complaining about the effectiveness of his counsel, are not arguable issues. Because we are affirming Ibarra's judgment and sentence, counsel must advise Ibarra of the result of this appeal and of his right to file a petition for discretionary review. Id. at 694; see also Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App. 1997).

Conclusion

We affirm the judgment of the trial court.