Armando Guerra Loya v. State

Opinion

NUMBER 13-15-00092-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ARMANDO GUERRA LOYA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 206th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Perkes Memorandum Opinion by Justice Rodriguez In 2014, pursuant to a plea agreement, appellant Armando Guerra Loya pled guilty

to deadly conduct, a third-degree felony offense. See TEX. PENAL CODE ANN. § 22.05

(West, Westlaw through 2015 R.S.). The trial court sentenced Loya to five years’

imprisonment in the Institutional Division of the Texas Department of Criminal Justice.

We affirm. I. ANDERS BRIEF

Loya’s appellate counsel has filed a motion to withdraw and a brief in support

thereof in which he states that he has diligently reviewed the entire record and has found

no non-frivolous issues. See Anders v. California, 386 U.S. 738 (1967); High v. State,

573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). Counsel's brief meets the

requirements of Anders as it presents a thorough, professional evaluation showing why

there are no arguable grounds for advancing an appeal. See In re Schulman, 252

S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“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.”); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en

banc).

In compliance with Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014),

counsel has 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)

notified Loya that he has filed an Anders brief and a motion to withdraw; (2) provided Loya

with copies of both pleadings; (3) informed Loya of his rights to file a pro se response,1

to review the record preparatory to filing that response, and to seek review if we conclude

that the appeal is frivolous; and (4) supplied Loya with a form motion for pro se access to

1 The Texas Court of Criminal Appeals has held that “the pro se response need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).

2 the appellate record. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20. Loya

filed a pro se brief that we construe to purport to raise an ineffective assistance of counsel

claim.

II. INDEPENDENT REVIEW

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

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

U.S. 75, 80 (1988). We have reviewed the record, counsel's brief, and Loya’s pro se

response, and we have found no reversible error. See Bledsoe v. State, 178 S.W.3d

824, 827–28 (Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in

the opinion it considered the issues raised in the brief and reviewed the record for

reversible error but found none, the court of appeals met the requirements of Texas Rule

of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. Accordingly, we affirm the

judgment of the trial court.

III. MOTION TO WITHDRAW

In accordance with Anders, Loya’s appellate counsel has filed a motion to

withdraw. 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.)

(“If 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 the motion to withdraw.

We order counsel to send, within five days of this opinion, a copy of the opinion

3 and judgment to Loya and to advise him of his right to file a petition for discretionary

review.2 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).

NELDA V. RODRIGUEZ Justice

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

Delivered and filed the 5th day of November, 2015.

2 No substitute counsel will be appointed. Should Loya wish to seek further review by the Texas Court of Criminal Appeals, he 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 that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals, see TEX. R. APP. P. 68.3(a), and must comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4. 4