ALEXANDER OCHOA v. THE STATE OF TEXAS (2010)

MEMORANDUM OPINION

Appellant Alexander Ochoa pleaded guilty to the offense of aggravated assault on a peace officer and pleaded “true” to two felony enhancements, without an agreed recommendation from the State regarding punishment.   See Tex. Penal Code Ann. § 22.02 (Vernon Supp.2010).   The trial court found appellant guilty, found the enhancements true, entered an affirmative deadly weapon finding, and assessed punishment at 25 years in prison.   Appellant's counsel on appeal has filed a motion to withdraw, along with an Anders brief stating that the record presents no reversible error and therefore the appeal is without merit and is frivolous.   See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).   We grant counsel's motion to withdraw and affirm.

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 an appointed attorney finds a case to be wholly frivolous, his obligation to his client is to seek leave to withdraw.  Id. Counsel's 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) the attorney has sent a copy of his Anders brief to his client along with a letter explaining that the defendant has the right to file a pro se brief within 30 days, and he has ensured that his client has, at some point, been informed of his right to file a pro se petition for discretionary review;

(2) the attorney has informed us that he has performed the above duties;

(3) the defendant 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 the attorney's motion to withdraw and affirm the trial court's judgment.   See Garner v. State, 300 S.W.3d 763, 766 (Tex.Crim.App.2009).   If we conclude that there is a plausible basis for appeal, 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 Schulman, 252 S.W.3d at 409.

Here, counsel's brief reflects that he delivered a copy of the brief to appellant and informed him of his right to examine the appellate record and to file a response.   See id. at 408.   More than 30 days have passed, and appellant has not filed a pro se brief.   See id. at 409 n.23 (adopting 30-day period for response).

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.   Counsel discusses the evidence, supplies us with references to the record, and provides us with citation to legal authorities.   See High v. State, 573 S.W.2d 807, 812 (Tex.Crim.App.1978).   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.).

We have independently reviewed the entire record, and we conclude that no reversible error exists in the record, that there are no arguable grounds for review, and that therefore the appeal is frivolous.   See Anders, 386 U.S. at 744, 87 S.Ct. at 1400;  Garner, 300 S.W.3d at 767 (explaining that frivolity is determined by considering whether there are “arguable grounds” for review);  Bledsoe v. State, 178 S.W.3d 824, 826 n.4 (Tex.Crim.App.2005) (notifying that reviewing court-and not counsel-determines, after full examination of proceedings, whether appeal is wholly frivolous);  Mitchell, 193 S.W.3d at 155.   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;  Bledsoe, 178 S.W.3d at 827.   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 withdraw and affirm the trial court's judgment.   Attorney Brian M. Middleton 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