Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00651-CR
Gregorio Ortiz GARZA,
Appellant
v.
The State of
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2011CR10604
Honorable Sid L. Harle, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Sandee Bryan Marion, Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: July 24, 2013
MOTION TO WITHDRAW GRANTED; AFFIRMED
Gregorio Ortiz Garza appeals the judgment convicting him of aggravated assault with a
deadly weapon and sentencing him to ten years’ incarceration. Garza’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 (1967), High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), and
Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Garza was provided a copy of the brief
and motion to withdraw and was informed of his right to review the record and file his own brief.
04-12-00651-CR
Garza filed a pro se brief and a motion requesting we order counsel to file a brief on the
merits. Garza contends he did not receive a fair trial, primarily because he received ineffective
assistance of counsel. “For a claim of ineffective assistance of counsel to succeed, the record must
demonstrate both deficient performance by counsel and prejudice suffered by the defendant. An
ineffective-assistance claim must be ‘firmly founded in the record’ and ‘the record must
affirmatively demonstrate’ the meritorious nature of the claim.” Menefield v. State, 363 S.W.3d
591, 592 (Tex. Crim. App. 2012) (citations omitted). To establish deficient performance, the
record must both show the acts or omissions complained of and reflect counsel’s reasons for so
acting or failing to act. Id. at 592-93. Here, the record does not reflect most of the acts and failures
of which Garza complains. Further, counsel has not been given the opportunity to explain the
reasons for his actions. Having carefully reviewed the record, counsel’s brief, and Garza’s pro se
brief, we find nothing that might arguably support a direct appeal. See Mata v. State, 226 S.W.3d
425, 430 (Tex. Crim. App. 2007) (“a reviewing court on direct appeal will rarely be able to fairly
evaluate the merits of an ineffective-assistance claim, because the record on direct appeal is usually
undeveloped and inadequately reflective of the reasons for defense counsel’s actions at trial);
Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) (“Generally the record on direct
appeal will not be sufficient to show that counsel’s representation was so deficient as to meet the
first part of the Strickland standard. The reasonableness of counsel’s choices often involves facts
that do not appear in the appellate record. A petition for writ of habeas corpus usually is the
appropriate vehicle to investigate ineffective-assistance claims.”).
After reviewing the record, counsel’s brief, and Garza’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 Garza’s counsel
and affirm the trial court’s judgment. See id.; Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.—
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04-12-00651-CR
San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio
1996, no pet.).
No substitute counsel will be appointed. Should Garza wish to seek further review of this
case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for
discretionary review or file a pro se petition for discretionary review. Any petition for
discretionary review must be filed within thirty days after either this opinion is rendered or the last
timely motion for rehearing or motion for en banc reconsideration is overruled by this court. See
TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the
Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review must comply
with the requirements of rule 68.4 of the Texas Rules of Appellate Procedure. See id. R. 68.4.
Luz Elena D. Chapa, Justice
DO NOT PUBLISH
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