Andrew Longoria v. State

Opinion

Opinion issued December 13, 2012

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00197-CR ——————————— ANDREW LONGORIA, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 1303224

MEMORANDUM OPINION

Appellant Andrew Longoria pleaded guilty, pursuant to an agreed

recommendation from the State regarding punishment, to the second-degree-felony

offense of assault of a family member, “Second Offender and Impeding

Breathing.” See TEX. PENAL CODE ANN. § 22.01(b–1) (West 2011). In accordance with appellant’s agreement with the State, the trial court deferred adjudication of

appellant’s guilt and placed him on community supervision for five years and

assessed a $500 fine. The State subsequently moved for adjudication, alleging that

appellant had violated the conditions of his community supervision by committing

a new offense; failing to maintain suitable employment during the months of July

and August 2011; failing to establish and pay child support; failing to perform

community service as ordered; failing to pay certain fees, fines, and costs; and

making false statements to a Harris County employee. Appellant pleaded “not

true” to the allegations. The trial court found the allegations true, found appellant

guilty of the underlying offense, and assessed punishment of confinement for

fifteen years and a $500 fine. Appellant timely filed a notice of appeal.

Appellant’s appointed appellate counsel 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 frivolous. See Anders v. California, 386 U.S. 738, 87

S. Ct. 1396 (1967). We grant counsel’s motion to withdraw and affirm the trial

court’s judgment.

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, her obligation to her client

is to seek leave to withdraw. Id. Counsel’s obligation to the appellate court is to

2 assure it, through an Anders brief, that, after a complete review of the record, the

request to withdraw is well-founded. Id.

Counsel’s brief meets the Anders requirements by presenting a professional

evaluation of the record. See id. Counsel discusses the evidence adduced, supplies

us with references to the record, and provides us with citation to legal authorities.

See id. at 411; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978).

Counsel indicates that she has thoroughly reviewed the record and is unable to

advance any grounds of error that warrant reversal. See Anders, 386 U.S. at 744,

87 S. Ct. at 1400; Schulman, 252 S.W.3d at 406–07; Mitchell v. State, 193 S.W.3d

153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

The brief also reflects that counsel delivered a copy of the brief to appellant

and informed him of his right to examine the record and to file a response. See

Schulman, 252 S.W.3d at 408. More than 30 days have passed, and appellant has

not filed a pro se response. See id. at 409 n.23 (adopting 30-day period for

response). The State waived its opportunity to file an appellee’s brief.

We have independently reviewed the record, and we conclude that no

reversible error exists, that there are no arguable grounds for review, and that the

appeal is frivolous. See id. at 407 n.12 (explaining that appeal is frivolous when it

does not present argument that could “conceivably persuade the court”); Bledsoe v.

State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (emphasizing that

3 reviewing court—and not counsel—determines, after full examination of

proceedings, whether the appeal is wholly frivolous). Although we may issue an

opinion explaining why the appeal lacks arguable merit, we are not required to do

so. See Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009). 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 withdraw1 and affirm the trial court’s

judgment. Attorney Melissa Martin 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). We dismiss any other pending

motions as moot.

PER CURIAM

Panel consists of Justices Jennings, Higley, and Sharp.

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