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

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NOS. 02-07-327-CR 

 02-07-328-CR

VERNON RAY SPAW A/K/A VERNON SPAW APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant Vernon Ray Spaw entered open pleas of guilty to burglary of

a habitation and felon in possession of a firearm, and he pleaded true to the

deadly weapon finding and to the repeat offender notice. The trial court

accepted his pleas and subsequently assessed punishment at forty years’
2... See Tex. Penal Code Ann. § 30.02 (Vernon 2003) (burglary of a

habitation offense); see id. §§ 12.32, 12.42(b) (Vernon Supp. 2008)

(punishment range for enhanced second-degree felony is five to ninety-nine

years’ confinement).

3... See id. § 46.04 (Vernon Supp. 2008) (felon in possession of firearm

offense); id. § 12.34 (punishment range for third-degree felony is two to ten

years’ confinement).

4... 386 U.S. 738, 87 S. Ct. 1396 (1967).

5... Spaw complains that the trial court abused its discretion by allowing

him to enter an open plea of guilty without a competency hearing, that the

State acted with prosecutorial vindictiveness in seeking a higher sentence than

that offered during plea negotiations, and that he received ineffective assistance

of counsel in the trial court. Notwithstanding the standard of review that we

must apply to this case, the record supports none of these complaints.

2

confinement for the burglary offense2and ten years’ confinement for the felon

in possession of a firearm offense.3In three points, Spaw now appeals these

convictions. We affirm.

Spaw’s court-appointed appellate counsel has filed a motion to withdraw

as counsel and a brief in support of that motion. In the brief, counsel avers

that, in his professional opinion, this appeal is frivolous. Counsel’s brief and

motion meet the requirements of Anders v. California4 by presenting a

professional evaluation of the record demonstrating why there are no arguable

grounds for relief. We gave Spaw the opportunity to file a pro se brief, and he

has filed one.5
3

As the reviewing court, we must conduct an independent evaluation of

the record to determine whether counsel is correct in determining that the

appeal is frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim.

App. 1991); Mays v. State, 904 S.W.2d 920, 923 (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). Because

Spaw entered an open plea of guilty, our independent review for potential error

is limited to potential jurisdictional defects, the voluntariness of Spaw’s plea,

error that is not independent of and supports the judgment of guilt, and error

occurring after entry of the guilty plea. See Monreal v. State, 99 S.W.3d 615,

620 (Tex. Crim. App. 2003); Young v. State, 8 S.W.3d 656, 666–67 (Tex.

Crim. App. 2000).

We have carefully reviewed the record, including the sealed presentence

investigation report, counsel’s brief, Spaw’s pro se brief, and the State’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); accord

Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006). We

therefore grant counsel’s motion to withdraw and affirm the trial court’s

judgment.
4

PER CURIAM

PANEL: MCCOY, LIVINGSTON, and DAUPHINOT, JJ.

DO NOT PUBLISH

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

DELIVERED: December 31, 2008