                              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.
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        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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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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