COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00074-CR
CARDAE ARTHUR DAVIS APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1390523D
----------
MEMORANDUM OPINION1
----------
Pursuant to an open plea agreement, the trial court convicted Appellant
Cardae Arthur Davis of aggravated assault with a deadly weapon and sentenced
him to four years’ confinement. Davis appeals from that conviction and
sentence. We affirm.
1
See Tex. R. App. P. 47.4.
Davis was charged with one count of aggravated robbery with a deadly
weapon, a first-degree felony, and one count of burglary. See Tex. Penal Code
Ann. §§ 29.03, 30.02 (West 2011). Davis and the State reached an open plea
agreement in which Davis agreed to plead guilty to the offense of aggravated
assault with a deadly weapon, a second-degree felony and, as charged, a lesser-
included offense of aggravated robbery with a deadly weapon. See Tex. Penal
Code Ann. § 22.02(b) (West 2011); Zapata v. State, 449 S.W.3d 220, 224–25
(Tex. App.—San Antonio 2014, no pet.). In exchange, the State agreed to waive
the burglary count and to dismiss two other causes that were pending against
him. Pursuant to the agreement, Davis pleaded guilty to aggravated assault with
a deadly weapon, and after admonishing Davis in writing, the trial court accepted
his guilty plea and recessed the proceeding for a presentence investigation
report to be completed. After the presentence investigation report was prepared,
the trial court held a sentencing hearing, found Davis guilty of aggravated assault
with a deadly weapon, and sentenced him to four years’ confinement. Davis now
appeals.2
2
We note that the trial court’s certification of Davis’s right to appeal in this
case appears to show that the trial court first noted that this “is a plea-bargain
case, and the defendant has NO right to appeal.” See Tex. R. App. P. 25.2.
However, the trial court marked through that notation and instead certified that
this “is not a plea-bargain case, and the defendant has the right of appeal.” We
pause to clarify that the open plea agreement negotiated between Davis and the
State recited above—commonly referred to as a charge bargain—constituted a
plea bargain affecting punishment, and consequently, Davis could appeal only
(1) those matters that were raised by written motion filed and ruled on before trial
2
Davis’s court-appointed appellate counsel has filed a motion to withdraw
as counsel, accompanied by an Anders brief in support of that motion. See
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). In the brief, counsel
states that in his professional opinion, this appeal is frivolous and without merit.
After Davis’s counsel filed his motion to withdraw and Anders brief, we notified
Davis and invited him to file a pro se response. Neither Davis nor the State filed
a response to counsel’s motion to withdraw or Anders brief.
Once an appellant’s court-appointed attorney files a motion to withdraw on
the ground that an appeal is frivolous and fulfills the requirements of Anders, we
have an obligation 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.). In this
evaluation, we consider the record, the arguments raised in the Anders brief, and
any issues the appellant points out in his pro se response. See United States v.
Wagner, 158 F.3d 901, 902 (5th Cir. 1998); In re Schulman, 252 S.W.3d 403,
408–09 (Tex. Crim. App. 2008) (orig. proceeding).
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 arguably might support an appeal. See Bledsoe v. State,
178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005); see also Meza v. State,
or (2) after getting the trial court’s permission. See Tex. R. App. P. 25.2(a)(2);
Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003).
3
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 judgment.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 23, 2016
4