Anna Gonzales v. State

• Court: Court of Appeals of Texas
• Decided: January 10, 2013
• Docket: 13-12-00097-CR
• Status: Published

Opinion

NUMBER 13-12-00097-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ANNA GONZALES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 28th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Longoria Memorandum Opinion by Chief Justice Valdez1 Appellant, Anna Gonzales, was convicted of possession of cocaine, a state-jail

felony enhanced to a third-degree felony by two prior convictions. See TEX. HEALTH &

SAFETY CODE ANN. § 481.115 (West 2010). The district court assessed a two-year

prison sentence. Appellant now seeks to appeal her conviction. 1 The Honorable Rose Vela, former Justice of this Court, did not participate in deciding the case because her term of office expired on December 31, 2012. “In accordance with the appellate rules, she was replaced on panel by Justice Nora L. Longoria”. See TEX. R. APP. P. 41.1(a). I. ANDERS BRIEF

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant’s court-

appointed appellate counsel 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. 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) (“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.”) (citing 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).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978), appellant’s counsel carefully discussed why, under controlling authority,

there is no reversible error in the trial court's judgment. Counsel has informed this Court

that he has: (1) examined the record and found no arguable grounds to advance on

appeal; (2) served a copy of the brief and counsel’s motion to withdraw on appellant;

and (3) informed appellant of his right to review the record and to file a pro se response.

See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman,

252 S.W.3d at 409 n.23. Appellant has not responded by filing a pro se response.

II. INDEPENDENT REVIEW

A court of appeals has two options when an Anders brief and a subsequent pro

se response are filed. After reviewing the entire record, it may: (1) determine that the

2 appeal is wholly frivolous and issue an opinion explaining that it finds no reversible

error; or (2) determine that there are arguable grounds for appeal and remand the case

to the trial court for appointment of new appellate counsel. Bledsoe v. State, 178

S.W.3d 824, 826–27 (Tex. Crim. App. 2005). If the court finds arguable grounds for

appeal, it may not review those grounds until after new counsel has briefed those issues

on appeal. Id.

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488

U.S. 75, 80 (1988). We have reviewed the entire record and counsel’s brief, and we

have found nothing that would arguably support an appeal. See Bledsoe, 178 S.W.3d

at 827-28 (“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.”); Stafford, 813 S.W.2d at 509. There is no reversible error in the

record. Accordingly, the judgment of the trial court is affirmed.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s attorney 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

3 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. 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).2

___________________ ROGELIO VALDEZ Chief Justice

Do not Publish. TEX. R. APP. P. 47.2(b) Delivered and filed the 10th day of January, 2013.

2 No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, she 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. Effective September 1, 2011, any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4.