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 2011-06

Elton Zalos Ortiz v. State ( 2011 )


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  • 02-10-411-CR


    COURT OF APPEALS

    SECOND DISTRICT OF TEXAS

    FORT WORTH

     

     

    NO. 02-10-00411-CR

     

     

    Elton Zalos Ortiz

     

    APPELLANT

     

    V.

     

    The State of Texas

     

    STATE

     

     

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    FROM Criminal District Court No. 2 OF Tarrant COUNTY

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    MEMORANDUM OPINION[1]

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              Appellant Elton Zalos Ortiz appeals from the trial court’s order denying his motion for post-conviction DNA testing.  See Tex. Code Crim. Proc. Ann. art. 64.01 (West Supp. 2010).  Ortiz’s court-appointed appellate counsel has filed a motion to withdraw as counsel and a brief in support of that motion.  Counsel avers that, in his professional opinion, the appeal is frivolous.  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). This court informed Ortiz that he may file a pro se brief, but he has not done so.  The State declined to submit a brief in response to the Anders 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 order.

     

     

     

    BILL MEIER
    JUSTICE

     

    PANEL: LIVINGSTON, C.J.; MEIER, J; and DIXON W. HOLMAN (Senior Justice, Retired, Sitting by Assignment).

     

    DO NOT PUBLISH

    Tex. R. App. P. 47.2(b)

     

    DELIVERED:  June 2, 2011


    [1]See Tex. R. App. P. 47.4.