In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-17-00418-CR

___________________________

On Appeal from the 297th District Court

Tarrant County, Texas

Trial Court No. 1452160D

Before Kerr, Pittman, and Womack, JJ.

Memorandum Opinion by Dana Womack

JUSTIN RYAN RUBIO, Appellant

V.

THE STATE OF TEXAS
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MEMORANDUM OPINION

Appellant Justin Ryan Rubio appeals his conviction and one-year jail sentence 

for the offense of cruelty to non-livestock animal—torture.1 We will affirm.

On April 21, 2017, Rubio entered an open plea2 of guilty to cruelty to nonlivestock animal—torture. The trial court accepted his plea and ordered the 

preparation of a presentence investigation report (PSI). After the completion of the 

PSI, the trial court held a hearing on Rubio’s punishment. The court admitted the 

PSI; heard testimony from two State’s witnesses, including an animal-cruelty 

investigator; heard testimony from Rubio and one of his friends; found Rubio guilty; 

and sentenced him to a one-year jail sentence. This appeal followed. 

Rubio’s court-appointed 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. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967), by presenting a 

 

1See Tex. Pen. Code Ann. § 42.092. 

2The term “open plea” is often utilized to refer to a myriad of different types of 

pleas that a defendant might enter but sometimes is a misnomer. See Harper v. State, 

No. 02-17-00016-CR, 2019 WL 165986, *1 (Tex. App.—Fort Worth, Jan. 10, 2019, 

no pet. h.) (discussing the use of the term “open plea” in the various settings it has 

been used, interpreted, and reviewed and whether it should be used at all). In this 

case, Rubio entered his plea without the benefit of an agreement with the prosecutors 

regarding sentencing (a sentencing bargain) and without the State having agreed to 

reduce the charged offense (a charge bargain). We use the term “open plea” in this 

case because that is how the plea is referred to in the trial court’s plea admonishments 

and the trial court’s judgment. 
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professional evaluation of the appellate record demonstrating why there are no 

arguable grounds for relief. See Stafford v. State, 813 S.W.2d 503, 510–11 & n.3 (Tex. 

Crim. App. 1991).

In compliance with Kelly v. State, counsel (1) notified Rubio of his motion to 

withdraw; (2) provided him a copy of both the motion and brief; (3) informed him of 

his right to file a pro se response; (4) informed him of his pro se right to seek 

discretionary review should this court hold the appeal frivolous; and (5) took concrete 

measures to facilitate his review of the appellate record. See 436 S.W.3d 313, 319 

(Tex. Crim. App. 2014). This court afforded Rubio the opportunity to file a response 

on his own behalf, but he did not do so. The State filed a letter stating that it would 

not be filing a brief. 

After an appellant’s court-appointed counsel files a motion to withdraw on the 

ground that an appeal is frivolous and fulfills the requirements of Anders, this court is 

obligated to undertake an independent examination of the record to see if there is any 

arguable ground that may be raised on his behalf. See Stafford, 813 S.W.2d at 511. 

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 Rubio entered an open plea of guilty, our 

independent review for error is limited to jurisdictional defects, the voluntariness of 

his 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, 619–20 
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(Tex. Crim. App. 2003); Young v. State, 8 S.W.3d 656, 666–67 (Tex. Crim. App. 2000); 

see also Faisst v. State, 98 S.W.3d 226, 227 (Tex. Crim. App. 2003).

We have carefully reviewed counsel’s brief and the appellate record. We agree 

with counsel that this appeal is wholly frivolous and without merit—we find nothing 

in the appellate record that arguably might support this 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 judgment.

/s/ Dana Womack

Dana Womack

Justice

Do Not Publish

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

Delivered: April 11, 2019