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

2... See Tex. Penal Code Ann. § 29.03(a)(2) (Vernon 2003).

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-08-351-CR

CLINTON JUNIOR BAGBY, III APPELLANT

A/K/A CLINTON J. BAGBY III

V.

THE STATE OF TEXAS STATE

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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant Clinton Junior Bagby, III, a/k/a Clinton J. Bagby III, waived his

right to a jury trial and entered an open plea of guilty to aggravated robbery

with a deadly weapon—a firearm.2 The trial court postponed Bagby’s

sentencing pending the preparation of a pre-sentence investigation (PSI) report.
3... See Tex. Penal Code Ann. § 12.32(a) (Vernon 2003) (“An individual

adjudged guilty of a felony of the first degree shall be punished by

imprisonment in the institutional division for life or for any term of not more

than 99 years or less than 5 years.”)

2

Without objection by Bagby and after the PSI was considered and filed by the

trial court, the trial court sentenced Bagby to a term of thirty-five years’

incarceration.3 Bagby now appeals his conviction and sentence. We will

affirm.

Bagby’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 her 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). Bagby has filed a

pro se brief in which he enumerates two potential sources of error. The State

has not filed a brief.

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
4... Bagby argues in his first issue that his appointed trial counsel was

ineffective for failing to prepare for trial and assuring Bagby that the “lenient

Judge” would assess a sentence five years or less. Bagby argues in his second

issue that his guilty plea was involuntary. The gist of Bagby’s complaints is

that he was prevented from making an informed choice between having the trial

judge assess punishment rather than a jury; thus, he received a longer sentence

than he hoped for. Bagby’s issues are without merit. See Salinas v. State, 163

S.W.3d 734, 740 (Tex. Crim. App. 2005) (stating that to overcome the

presumption of reasonable professional assistance, any allegation of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness); see also Lemmons v.

State, 133 S.W.3d 751, 757 (Tex. App.—Fort Worth 2004, pet. ref’d) (stating

that “a plea of guilty is not rendered involuntary merely because the defendant

received a greater punishment than anticipated or because he did not assess

every relevant factor when entering into his decision to plead guilty”).

3

Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988). Because

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

is limited to potential jurisdictional defects, the voluntariness of Bagby’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, counsel’s brief, and Bagby’s

pro se brief.4 We agree that the appeal is wholly frivolous and without merit,

and 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
4

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. 

PER CURIAM

PANEL: MEIER, GARDNER, and WALKER, JJ.

DO NOT PUBLISH

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

DELIVERED: May 21, 2009