                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-293-CR


DONALD LEON CALTON II                                             APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE

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           FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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      Appellant Donald Leon Calton II entered an open plea of guilty to

aggravated assault on a public servant. The trial court assessed his punishment

at two years’ confinement.

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

as counsel and a brief in support of that motion. Counsel’s brief and motion




      1
          … See Tex. R. App. P. 47.4.
meet the requirements of Anders v. California2 by presenting a professional

evaluation of the record demonstrating why the appeal is frivolous. See McCoy

v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 444, 108 S. Ct. 1895,

1905 (1988) (stating that appeal is frivolous if “the client’s interests would not

be served by proceeding with the appeal”); High v. State, 573 S.W.2d 807,

813 (Tex. Crim. App. [Panel Op.] 1978) (discussing that a “frivolous appeal”

brief must “discuss either why the trial court’s ruling was correct or why the

appellant was not harmed by the ruling of the court”). The State has not filed

any response to counsel’s Anders brief.        Likewise, Calton was given the

opportunity to file a pro se brief, but he did not do so.

      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

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

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



      2
          … 386 U.S. 738, 87 S. Ct. 1396 (1967).

                                        2
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 and counsel’s brief. We agree

with counsel that this appeal is wholly frivolous, that Calton’s interests would

not be served by proceeding with the appeal, and that Calton was not harmed

by the court’s rulings. See McCoy, 486 U.S. at 444, 108 S. Ct. at 1905;

Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005); High, 573

S.W.2d at 813. We therefore grant counsel’s motion to withdraw and affirm

the trial court’s judgment.



                                           SUE WALKER
                                           JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 19, 2009




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