Opinion issued October 11, 2012.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-10-00555-CR
                             NO. 01-10-00556-CR
                          ———————————
 STACY SHANE JOHNSTON AKA STACY SHANE JOHNSON, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                 On Appeal from the 252nd District Court
                          Jefferson County, Texas
                Trial Court Case Nos. 09-06343 and 09-07573



                        MEMORANDUM OPINION

      Stacy Johnston pleaded guilty to the following offenses: (1) unauthorized

use of a vehicle, a state-jail felony, in trial cause number 09-06343, see TEX.

PENAL CODE ANN. § 31.07 (West 2011); and (2) burglary of a habitation, a second-
degree felony, in trial cause number 09-07573, see TEX. PENAL CODE ANN. § 30.02

(West 2011).1 Johnston pleaded guilty to unauthorized use without an agreed

recommendation as to punishment, and the trial court sentenced him to two years’

confinement. With respect to his plea to the burglary charge, however, Johnston

and the State agreed that his punishment would not exceed fifteen years’

confinement, and the trial court assessed punishment at fifteen years in accordance

with that agreement. The trial court ordered that the sentences run concurrently.

      Johnston attempts to appeal both convictions. His court-appointed appellate

counsel has filed a motion to withdraw, along with an Anders brief stating that the

record presents no reversible error with respect to either of Johnston’s convictions.

See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). We

affirm the trial court’s judgment and grant counsel’s motion to withdraw.

                                    Jurisdiction

      As a preliminary matter, we must determine our jurisdiction over Johnston’s

appeal. Texas Rule of Appellate Procedure 25.2(a)(2) provides that in a plea

bargain case—“a case in which a defendant’s plea was guilty or nolo contendere

and the punishment did not exceed the punishment recommended by the prosecutor

and agreed to by the defendant”—a defendant may appeal only those matters that



1
      Originally appealed to the Ninth Court of Appeals, these cases were transferred to
      this Court by order of the Texas Supreme Court.
                                          2
were raised by written motion filed and ruled on before trial or after getting the

trial court’s permission to appeal. TEX. R. APP. P. 25.2(a)(2).

      We have jurisdiction to consider Johnston’s appeal from his conviction for

unauthorized use of a vehicle in cause number 09-06343 because the trial court has

certified that the unauthorized-use case is not a plea bargain case and that Johnston

has a right to appeal. Johnston’s agreement with the State in the burglary case,

which places a cap on punishment, however, is a plea bargain for purposes of rule

25.2(a)(2). See Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003)

(stating that sentence-bargaining may be for recommendations to court on

sentences, including recommended “cap” on sentencing); Waters v. State, 124

S.W.3d 825, 826−27 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).

Consequently, the trial court certified that Johnston has no right to appeal his

burglary conviction, and we may only consider matters raised by a written pre-trial

motion. See TEX. R. APP. P. 25.2(a)(2). The record does not contain any adverse

pre-trial rulings. Thus, although we have jurisdiction over Johnston’s appeal from

his unauthorized-use conviction in cause number 09-06343, we do not have

jurisdiction over the appeal from his burglary conviction in cause number 09-

07573, and we dismiss that part of Johnston’s appeal for want of jurisdiction.




                                          3
                                       Discussion

         An attorney has an ethical obligation to refuse to prosecute a frivolous

appeal. In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). If a court-

appointed attorney finds a case to be wholly frivolous, his obligation to his client is

to seek leave to withdraw. Id. at 407. His obligation to the appellate court is to

assure it, through an Anders brief, that, after a complete review of the record, the

request to withdraw is well founded. Id. We may not grant the motion to withdraw

until:

         (1)   counsel has sent a copy of his Anders brief to the appellant, along with
               a letter explaining that an appellant has the right to file a pro se brief
               within thirty days, and he has assured that the appellant has, at some
               point, been informed of his right to file a pro se petition for
               discretionary review;

         (2)   counsel has informed the Court that he performed the above duties;

         (3)   the appellant has had time in which to file a pro se response; and

         (4)   we have reviewed the record, the Anders brief, and any pro se brief.

See id. at 408−09. If we agree that the appeal is wholly frivolous, we will grant

counsel’s motion to withdraw and affirm the trial court’s judgment. See Garner v.

State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009). If we conclude that arguable

grounds for appeal exist, however, we will grant the motion to withdraw, abate the

case, and remand it to the trial court to appoint new counsel to file a brief on the

merits. See Bledsoe v. State, 178 S.W.3d 824, 826−27 (Tex. Crim. App. 2005).

                                            4
      Here, the record reflects that counsel sent a copy of the brief to Johnston and

informed him of his right to examine the appellate record and to file a response.

See Schulman, 252 S.W.3d at 408. Counsel’s brief meets the Anders requirements

by presenting a professional evaluation of the record. See Anders, 386 U.S. at 744,

87 S. Ct. at 1400; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App.

1978). Counsel discusses the evidence, supplies us with references to the record,

and provides us with citation to legal authorities. Counsel indicates that he has

thoroughly reviewed the record and that he is unable to advance any grounds of

error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell

v. State, 193 S.W.3d 153, 154 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

      In his pro se response, Johnston argues that (1) double jeopardy bars his

conviction, (2) he received the ineffective assistance of counsel at sentencing, and

(3) the trial court erred by admitting extraneous-offense and other unfairly

prejudicial evidence.

      We have independently reviewed the entire record, and we conclude that no

reversible error exists in appellate cause number 01-10-00555-CR, that there are no

arguable grounds for review in appellate cause number 01-10-00555-CR, and that

therefore the appeal in appellate cause number 01-10-00555-CR is frivolous. See

Schulman, 252 S.W.3d at 407 n.12 (explaining that appeal is frivolous when it does

not present any argument that could “conceivably persuade the court”); Bledsoe,

                                         5
178 S.W.3d at 826–27 (emphasizing that reviewing court—and not counsel—

determines, after full examination of proceedings, whether the appeal is wholly

frivolous). Although we may issue an opinion explaining why the appeal lacks

arguable merit, we are not required to do so. See Garner, 300 S.W.3d at 767. An

appellant may challenge a holding that there are no arguable grounds for appeal by

filing a petition for discretionary review in the Court of Criminal Appeals. See

Bledsoe, 178 S.W.3d at 827 & n.6.

      We grant counsel’s motion to withdraw2 and affirm the trial court’s

judgment in cause number 09-06343. Attorney Thomas J. Burbank must

immediately send the notice required by Texas Rule of Appellate Procedure 6.5(c)

and file a copy of that notice with the Clerk of this Court. See TEX. R. APP. P.

6.5(c).

                                   PER CURIAM

Panel consists of Justices Keyes, Massengale and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




2
      Counsel still has a duty to inform Johnston of the result of this appeal and that he
      may, on his own, pursue discretionary review in the Texas Court of Criminal
      Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
                                           6
