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Martinez v. State

Court of Appeals of Texas, Tenth District, Waco
Jan 4, 2006
No. 10-04-00117-CR (Tex. App. Jan. 4, 2006)

Opinion

No. 10-04-00117-CR

Opinion delivered and filed January 4, 2006. DO NOT PUBLISH.

Appeal fromthe 54th District Court, McLennan County, Texas, Trial Court No. 2004-522-C. Affirmed.

Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.


MEMORANDUM OPINION


Adam Martinez was found guilty by a jury of the offense of robbery. Punishment was enhanced by two prior felony convictions, and the court sentenced Martinez to 24 years in prison. Martinez appeals. His counsel filed an Anders brief. See Anders v. California, 386 U.S. 738 (1967). We affirm. The brief reviews: (1) the indictment; (2) pre-trial motions; (3) voir dire; (4) the guilt-innocence phase, including the opening statements, the sufficiency of the evidence, objections to the evidence, the jury charge, closing arguments, and the verdict; (5) the punishment phase, including the opening statements, objections to the evidence, and closing arguments; (6) the sentence and judgment; and (7) ineffective assistance of counsel. Counsel found no "issues of arguable merit to raise on appeal. . . ." Martinez filed a brief raising numerous issues: (1) two issues of ineffective assistance of counsel; (2) abuse of discretion by the trial court in denying a motion for continuance; (3) a Brady violation by the State; (4) the denial of the right to confrontation and the right to subpoena witnesses due to the denial of the motion for continuance; (5) the denial of the right to confrontation and due process due to the State's failure to sua sponte order witnesses to the courtroom; (6) error in the sentence and judgment; (7) prosecutorial misconduct; (8) ineffective assistance of counsel on appeal; and (9) factual insufficiency of the evidence. The State filed a response, and Martinez filed a reply brief. We must, "after a full examination of all the proceedings, . . decide whether the case is wholly frivolous." Anders at 744; accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex.Crim.App. 1991); Coronado v. State, 996 S.W.2d 283, 285 (Tex.App.-Waco 1999, order) (per curiam), disp. on merits, 25 S.W.3d 806 (Tex.App.-Waco 2000, pet. ref'd). An appeal is "wholly frivolous" or "without merit" when it "lacks any basis in law or fact." McCoy v. Court of Appeals, 486 U.S. 429, 439 n. 10 (1988). Arguments are frivolous when they "cannot conceivably persuade the court." Id. at 436. An appeal is not wholly frivolous when it is based on "arguable grounds." Stafford at 511. We have reviewed the record and determine that the appeal is wholly frivolous. Bledsoe v. State, No. PD-300-04, 2005 Tex. Crim. App. LEXIS 1969, *7-8 (Tex.Crim.App. 2005). Accordingly, we affirm. Counsel must advise Martinez of our decision and of his right to file a petition for discretionary review. See Sowels v. State, 45 S.W.3d 690, 694 (Tex.App.-Waco 2001, no pet.).


Summaries of

Martinez v. State

Court of Appeals of Texas, Tenth District, Waco
Jan 4, 2006
No. 10-04-00117-CR (Tex. App. Jan. 4, 2006)
Case details for

Martinez v. State

Case Details

Full title:ADAM MARTINEZ, Appellant, v. THE STATE OF TEXAS, Appellee

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

Date published: Jan 4, 2006

Citations

No. 10-04-00117-CR (Tex. App. Jan. 4, 2006)