Raul Ramirez Cardenas, Appellant v. The State of Texas, Appellee (2010)

M E M O R A N D U M O P I N I O N

A jury found Raul Cardenas guilty of driving while intoxicated.   See Tex. Penal Code Ann. § 49.04 (West 2003) (defining crime of driving while intoxicated).   The indictment alleged that Cardenas had previously been convicted of two prior driving-while-intoxicated offenses, which elevated the crime charged to a felony.   See id. § 49.09(b) (West Supp.2009) (elevating offense level for prior convictions).   The indictment also contained an enhancement section alleging that Cardenas had previously been convicted of two prior felony offenses.   See id. § 12.42(d) (West Supp.2009) (elevating permissible punishments due to prior felony convictions).   After the jury found Cardenas guilty, the district court held a punishment hearing.   During the hearing, Cardenas pleaded “true” to the enhancement allegations.   Ultimately, the district court determined that the prior allegations were true and imposed a punishment of twenty-five years' imprisonment.   Shortly after the punishment was assessed, Cardenas appealed the district court's judgment.

On appeal, Cardenas's attorney has filed a brief asserting that the appeal is frivolous and without merit and a motion seeking leave to withdraw as Cardenas's counsel.   Because the brief presents a professional evaluation of the record and demonstrates that there are no arguable grounds to be advanced, the brief meets the requirements articulated in Anders v. California, 386 U.S. 738, 743-44 (1967).   See Penson v. Ohio, 488 U.S. 75, 80 (1988);  High v. State, 573 S.W.2d 807, 811-13 (Tex.Crim.App.1978).   Further, Cardenas's attorney sent Cardenas a copy of the Anders brief and advised him that he had the right to examine the record and file a pro se brief.   See Anders, 386 U.S. at 744;  Jackson v. State, 485 S.W.2d 553, 553 (Tex.Crim.App.1972).   Cardenas has not filed a pro se brief.

We have considered the record and the brief filed by Cardenas's attorney and agree that the appeal is frivolous and without merit.   After reviewing the evidence presented to the jury and the procedures that were observed, we find nothing in the record that might arguably support the appeal.   Accordingly, we grant Cardenas's attorney's motion to withdraw and affirm Cardenas's conviction.¹

FOOTNOTES

FN1. No substitute counsel will be appointed.   Should Cardenas wish to seek further review of his case by the 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.   See generally Tex.R.App. P. 68-79 (governing proceedings in Texas Court of Criminal Appeals).   Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the date this Court overruled the last timely motion for rehearing filed.   See id.   R. 68.2.   The petition must be filed with this Court, after which it will be forwarded to the court of criminal appeals along with the rest of the filings in this case.   See id.   R. 68.3, 68.7.   Any petition for discretionary review should comply with rules 68.4 and 68.5 of the rules of appellate procedure.   See id.   R. 68.4, 68.5..  FN1. No substitute counsel will be appointed.   Should Cardenas wish to seek further review of his case by the 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.   See generally Tex.R.App. P. 68-79 (governing proceedings in Texas Court of Criminal Appeals).   Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the date this Court overruled the last timely motion for rehearing filed.   See id.   R. 68.2.   The petition must be filed with this Court, after which it will be forwarded to the court of criminal appeals along with the rest of the filings in this case.   See id.   R. 68.3, 68.7.   Any petition for discretionary review should comply with rules 68.4 and 68.5 of the rules of appellate procedure.   See id.   R. 68.4, 68.5.

David Puryear, Justice