ROLAND GARCIA v. THE STATE OF TEXAS (2017)

MEMORANDUM OPINION

Appellant Roland Garcia challenges his conviction for one count of aggravated assault, a second-degree felony. See TEX. PENAL CODE ANN. § 22.02 (West, Westlaw through 2015 R.S.). We affirm.

I. BACKGROUND

The State alleged by indictment that appellant inflicted bodily injury on Robert Mercado by stabbing him with a knife. Appellant pled guilty pursuant to a plea agreement which called for him to serve a term of community supervision. Pursuant to the agreement, the trial court deferred adjudication of guilt, placed appellant on deferred adjudication community supervision for ten years, and ordered him to pay $20,042.08 in restitution to Mercado.

The State later filed a motion to adjudicate guilt which alleged that appellant violated three of the conditions of his community supervision. Appellant pled “true” to all three allegations and requested that the court continue him on community supervision. After hearing arguments from both the State and appellant, the trial court revoked appellant's supervision, adjudicated him guilty of the offense, and assessed his sentence at imprisonment for eighteen years in the Institutional Division of the Texas Department of Criminal Justice, a $2,500 fine, and the remaining balance of the restitution. Appellant filed a motion to reconsider his sentence, which the trial court denied.

This appeal followed. As discussed below, appellant's court-appointed counsel has filed a motion to withdraw accompanied by an Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967).

II. COMPLIANCE WITH ANDERS

Pursuant to Anders v. California, appellant's court-appointed appellate counsel has filed a brief and a motion to withdraw with this Court, stating that his review of the record yielded no grounds of error upon which an appeal can be predicated. See id. Counsel's brief meets the requirements of Anders as it presents a professional evaluation demonstrating why there are no arguable grounds to advance on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“In Texas, an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities.”) (quoting Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex. App.—Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014), appellant's counsel carefully discussed why, under controlling authority, there is no reversible error in the trial court's judgment.² Counsel has informed this Court, in writing, that counsel has: (1) notified appellant that counsel has filed an Anders brief and a motion to withdraw; (2) informed appellant of his rights to file a pro se response,³ review the record preparatory to filing that response, and seek discretionary review if the Court concludes that the appeal is frivolous; and (3) provided appellant with a form motion for pro se access to the appellate record, lacking only the appellant's signature and the date and including the mailing address for the court of appeals, with instructions to file the motion within ten days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. More than an adequate time has passed, and appellant has not filed a motion for access to the appellate record or a pro se response.

III. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). We have reviewed the record and counsel's brief, and we have found no reversible error. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in the opinion it considered the issues raised in the brief and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. We affirm the trial court's judgment.

IV. MOTION TO WITHDRAW

In accordance with Anders, appellant's attorney has asked this Court for permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80 (Tex. App.—Dallas 1995, no pet.) (“[I]f an attorney believes the appeal is frivolous, he must withdraw from representing the appellant. To withdraw from representation, the appointed attorney must file a motion to withdraw accompanied by a brief showing the appellate court that the appeal is frivolous.”) (citations omitted)). We grant counsel's motion to withdraw. Within five days of the date of this Court's opinion, counsel is ordered to send a copy of this opinion and this Court's judgment to appellant and to advise him of his right to file a petition for discretionary review.⁴ See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

FOOTNOTES

2.   Appellant's counsel informed us that he specifically considered whether: (1) the indictment was sufficient; (2) there were any adverse rulings on pretrial motions; (3) the trial court admonished appellant consistent with article 26.13 of the Texas Code of Criminal Procedure; (4) appellant was competent to plea; (5) appellant's plea of true to the State's allegations was free and voluntary; (6) the record reflected any fundamental errors; (7) the court's sentence was within the statutory range for the offense; (8) the judgment accurately reflected the trial court's sentence and gave appellant credit for all the time he spent incarcerated on the case; and (9) appellant received effective assistance of counsel. Counsel concluded that none of these issues were meritorious.

3.   The Texas Court of Criminal Appeals has held that “the pro se response need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (orig. proceeding) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).

4.   No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas 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. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the court of criminal appeals and should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.3, 68.4.

NORA L. LONGORIA Justice