                                    NO. 07-02-0126-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL B

                                     OCTOBER 8, 2003

                           ______________________________


                              GILBERT ACOSTA, APPELLANT

                                             V.

                            THE STATE OF TEXAS, APPELLEE


                          _________________________________

               FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2001-438250; HONORABLE JIM BOB DARNELL, JUDGE

                           _______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.


                                 MEMORANDUM OPINION


          Appellant Gilbert Acosta appeals from his conviction for attempted burglary of a

habitation with intent to commit arson and his sentence of 18 years imprisonment. We

affirm.
       On November 28, 2001, appellant was indicted on charges of arson and burglary

of a habitation with intent to commit arson. The State elected to proceed on the latter

charge. On January 22, 2002, the case was tried before a jury. On January 23, 2002, the

jury found appellant guilty. A sentencing hearing was held on March 1, 2002, which

resulted in the trial court sentencing appellant to 18 years incarceration.


       Counsel for appellant has filed a Motion to Withdraw and a Brief in Support thereof.

In support of the motion to withdraw, counsel has certified that, in compliance with Anders

v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the record has

been diligently reviewed and that in the opinion of counsel, the record reflects no

reversible error or grounds upon which a non-frivolous appeal can arguably be predicated.

Counsel thus concludes that the appeal is frivolous. Counsel has discussed why, under

the controlling authorities, there is no reversible error in the trial court proceedings or

judgment. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978).


       In reaching the conclusion that the appeal is frivolous, counsel advances four

possible issues. Those issues are based on whether (1) the trial court erred in overruling

appellant’s objection that the State’s notice to appellant of its intent to offer evidence of

several extraneous offenses was untimely given, (2) the trial court erred in overruling any

of appellant’s objections during trial, (3) the trial court erred in not including an instruction

on the lesser included offense of criminal mischief in the jury charge where such a charge

was not requested by appellant’s counsel, and (4) the failure of appellant’s trial counsel




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to request a jury instruction on the lesser included offense of criminal mischief constituted

ineffective assistance of counsel.


       After referencing, analyzing and discussing both the record, counsel has discussed

why, under the controlling authorities, there is no arguably reversible error in the trial

court’s judgment. See High, 573 S.W.2d at 813. Counsel has attached exhibits showing

that a copy of the Anders brief and Motion to Withdraw have been forwarded to appellant,

and that counsel has appropriately advised appellant of appellant’s right to review the

record and file a response to counsel’s motion and brief. Appellant has not filed a

response to counsel’s motion and brief.


       We have made an independent examination of the record to determine whether

there are any arguable grounds for appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct.

346, 102 L.Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.

1991). We have found no such grounds. We agree that the appeal is without merit.


       Accordingly, counsel’s Motion to Withdraw is granted. The judgment of the trial

court is affirmed.


                                                  Phil Johnson
                                                  Chief Justice


Do not publish.




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