Apolinar Marquez Camposano v. State

Opinion

Opinion issued October 11, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-15-00041-CR ——————————— APOLINAR MARQUEZ CAMPOSANO, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 284th District Court Montgomery County, Texas Trial Court Case No. 08-05-04380-CR

MEMORANDUM OPINION

A jury convicted appellant, Apolinar Marquez Camposano, of the offense of

murder. See TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). Appellant pleaded

guilty pursuant to an agreement with the State for an open plea to the court with a punishment cap of thirty years. After waiving his right to have a jury assess his

punishment, the trial court sentenced appellant to thirty years’ confinement. The trial

court granted an out-of-time appeal.1

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

with a brief stating that the record presents no reversible error and the appeal is

without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct.

1396 (1967).

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

evaluation of the record and supplying us with references to the record and legal

authority. See id. at 744, 87 S. Ct. at 1400; High v. State, 573 S.W.2d 807, 812 (Tex.

Crim. App. 1978). After a thorough review of the record, counsel asserts that no

viable points of error exist for the purpose of a direct appeal. See Anders, 386 U.S.

at 744, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—

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

In his pro se response, appellant argues, among other things, that (1) the trial

court erred in relying on the PSI report in light of counsel’s objection because the

1 See Ex parte Camposano, No. WR–82,334–01, 2014 WL 6789446, at *1 (Tex. Crim. App. Nov. 19, 2014) (mem. op., not designated for publication) (granting appellant’s habeas petition because his initial appellate counsel failed to timely file notice of appeal, and finding that appellant was entitled to file out-of-time notice of appeal related to sentencing). The Texas Supreme Court transferred this appeal from the Ninth Court of Appeals to this Court pursuant to its docket equalization powers. See TEX. GOV’T CODE ANN. § 73.001 (West Supp. 2015).

2 PSI report contained a misleading and false statement regarding a prior probated

sentence; and (2) he received ineffective assistance of counsel.

We have independently reviewed the entire record in this appeal, and we

conclude that no reversible error exists in the record, there are no arguable grounds

for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400

(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–

27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing court

determines whether arguable grounds exist by reviewing entire record). We note

that 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 We affirm the judgment of the trial court and grant counsel’s motion to

withdraw.2 Attorney Michael Young must immediately send appellant the required

notice and file a copy of the notice with the Clerk of this Court. See TEX. R. APP. P.

6.5(c).

PER CURIAM

Panel consists of Justices Jennings, Keyes, and Brown.

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

2 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 Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).