Adrian Galvez Plasencia v. State

Opinion

Opinion issued December 3, 2020

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00104-CR ——————————— ADRIAN GALVEZ PLASENCIA, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 10th District Court Galveston County, Texas Trial Court Case No. 18CR1927

MEMORANDUM OPINION

A jury found appellant, Adrian Galvez Plasencia, guilty of the second-degree

felony offense of aggravated assault with a deadly weapon. See TEX. PENAL CODE §

22.02(a)(2). The jury assessed punishment at eight years’ imprisonment, which is

within the applicable sentencing range for the offense. See TEX. PENAL CODE § 12.34(a). The trial court certified that this was not a plea-bargain case, and that

appellant had the right of appeal. See TEX. R. APP. P. 25.2(a)(2). Appellant timely

filed a notice of appeal.

Appellant’s appointed counsel on appeal has filed a motion to withdraw, along

with an Anders brief stating that the record presents no reversible error and that,

therefore, the appeal is without merit and is frivolous. See Anders v. California, 386

U.S. 738 (1967). Counsel’s brief meets the Anders requirements by presenting a

professional evaluation of the record and supplying this Court with references to the

record and legal authority. See id. at 744; see also High v. State, 573 S.W.2d 807,

812 (Tex. Crim. App. 1978). Counsel indicates that she has thoroughly reviewed the

record and that she is unable to advance any grounds of error that warrant reversal.

See Anders, 386 U.S. at 744; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—

Houston [1st Dist.] 2006, no pet.).

Appellant’s counsel has certified that she mailed a copy of the motion to

withdraw and the Anders brief to appellant and informed appellant of his right to file

a response and to access the record. See In re Schulman, 252 S.W.3d 403, 408 (Tex.

Crim. App. 2008). Furthermore, counsel certified that she sent appellant the form

motion for pro se access to the records for his response. See Kelly v. State, 436

S.W.3d 313, 322 (Tex. Crim. App. 2014). Appellant was provided a copy of the

record and filed a pro se response.

2 Appellant’s pro se response is a one-page handwritten note claiming that he

is innocent because he was already in jail at the time of the alleged offense.

Appellant’s response lacks any support in the record and is firmly controverted by

evidence offered at trial. In addition to evidence offered by the State, the reporter’s

record includes appellant’s trial testimony admitting to his committing the offense.

We have independently reviewed the entire record in this appeal, 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 (emphasizing that reviewing court—and not counsel—determines, after full

examination of proceedings, whether appeal is wholly frivolous); Garner v. State,

300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine

whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826–

28 (Tex. Crim. App. 2005) (reviewing court is not to address merits of each claim

raised in Anders brief or pro se response after determining there are no arguable

grounds for review); Mitchell, 193 S.W.3d at 155. An appellant may challenge a

holding that there are no arguable grounds for appeal by filing a petition for

discretionary review in the Texas Court of Criminal Appeals. See Bledsoe, 178

S.W.3d at 827 n.6.

3 Accordingly, we affirm the judgment of the trial court and grant counsel’s

motion to withdraw.1 See TEX. R. APP. P. 43.2(a). Attorney James Ducote must

immediately send the required notice and file a copy of that notice with the Clerk of

this Court. See TEX. R. APP. P. 6.5(c). We dismiss any other pending motions as

moot.

PER CURIAM Panel consists of Justices Keyes, Lloyd, and Landau.

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

1 Appointed counsel still has a duty to inform appellant 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). 4