Adan Moreno v. State

• Court: Court of Appeals of Texas
• Decided: June 29, 2006
• Docket: 13-05-00412-CR
• Status: Published

Opinion

                              NUMBER 13-05-412-CR 

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG 

ADAN MORENO, JR.,                                                                       Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                 Appellee.

On appeal from the 36th District Court

of San Patricio County, Texas

MEMORANDUM OPINION

                      Before Justices Hinojosa, Rodriguez and Garza

                        Memorandum Opinion by Justice Rodriguez

Appellant, Adan Moreno, Jr.,  was charged with the offense of aggravated sexual assault of a child.  See Tex. Pen. Code Ann. ' 22.021 (Vernon 2003 & Supp. 2005).  The jury found appellant guilty, and the trial court assessed punishment at life imprisonment in the Texas Department of Criminal Justice-Institutional Division.^[1]

Concluding that the appeal is without merit, appellant's counsel filed a brief in which he presented two arguable grounds of error, including (1) whether the trial court erred by proceeding with an eleven member jury after one juror became disabled, and (2) whether the trial court erred in allowing testimony regarding the contents of a sexual assault nurse examination report.  We affirm.

I.  Compliance with Anders v. California

Appellant's court-appointed counsel filed a brief in which he has concluded that there are no meritorious issues to advance on appeal.  See Anders v. California, 386 U.S. 738, 744 (1967).  The brief meets the requirements of Anders.  See id. at 744-45; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978).  In compliance with Anders, counsel presented a professional evaluation of the record and referred this Court to all issues which might arguably support an appeal.  See Anders, 386 U.S. at 744; see also Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974).  Counsel has informed this Court that he has (1) examined the record and has found no meritorious issues to advance on appeal, and (2) forwarded a copy of the brief to appellant, accompanied by a letter informing appellant of his right to file a pro se brief.  See Anders, 386 U.S. at 744; see also Stafford v. State, 813 S.W.2d 503, 509-10 (Tex. Crim. App. 1991) (en banc).  More than thirty days have passed, and appellant has not filed any pro se brief.  See Anders, 386 U.S. at 744-45; see also Stafford, 813 S.W.2d at 510.

II.  Independent Review of Record

Upon receiving a "frivolous appeal" brief, we must conduct "a full examination of all the proceedings to decide whether the case is wholly frivolous."  Penson v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.BCorpus Christi 2003, no pet.).  Accordingly, we have carefully reviewed the record and have considered the issues raised in appellant's brief.  We find nothing in the record that would arguably support an appeal.  See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005).  Therefore, we agree with counsel that the appeal is without merit.  See id. at 828 ("Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1.").

III.  Conclusion

The judgment of the trial court is affirmed.  Additionally, in accordance with Anders, appellant's counsel filed a motion to withdraw as counsel for appellant.  See Anders, 386 U.S. at 744.  Having affirmed the judgment, we now grant counsel's motion to withdraw.  We order counsel to notify appellant of the disposition of this appeal and of the availability of discretionary review.  See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (en banc) (per curiam).                

NELDA V. RODRIGUEZ

Justice

Do not publish.                                             

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 29th day of June, 2006.

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^[1]Appellant was sentenced as a repeat offender pursuant to section 12.42(c)(2) of the Texas Penal Code.  See Tex. Pen. Code Ann. ' 12.42(c)(2) (Vernon 2003 & Supp. 2005) (providing that a defendant shall be punished by life imprisonment if he is convicted of an offense under section 22.021 of the penal code and he has been convicted previously of an offense under section 22.021 of the penal code).