Avelino Gregorio Marcos v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 23, 2022
• Docket: 05-21-00089-CR
• Status: Published

Opinion

Affirm and Opinion Filed May 23, 2022

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00089-CR

AVELINO GREGORIO MARCOS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause No. F-0923557-Y

MEMORANDUM OPINION Before Justices Molberg, Nowell, and Goldstein Opinion by Justice Molberg Avelino Gregorio Marcos, appellant, appeals the revocation of his community

supervision. Court-appointed appellate counsel, Juanita Bravo Edgecomb, filed an

Anders brief and a motion to withdraw as counsel, asserting that there are no non-

frivolous issues that appellant could raise on appeal. We have reviewed the record

and agree. We grant counsel’s motion to withdraw and affirm the judgment below.

Appellant Avelino Marcos was indicted for the offense of burglary of a

habitation in 2009. Appellant waived his right to a jury trial and pleaded guilty

pursuant to a plea-bargain agreement with the State. The trial court accepted the agreement and sentenced appellant to ten years’ confinement, probated for eight

years.

The State filed an amended motion to revoke appellant’s probation on May 1,

2020. The State alleged appellant violated five conditions of supervision: that he

failed to report to the probation office from August 2009 through February 2017

(condition (d)); failed to pay probation fees and was delinquent $1,820 (condition

(j)); did not pay the Crime Stoppers payment and was delinquent $50 (condition (k));

did not complete the required community service hours (condition (l)); and did not

pay $6,300 in restitution as ordered (condition (p)). On January 21, 2021, the trial

court held a hearing. Appellant pleaded not true to the allegations. After hearing

testimony from a probation officer and appellant, the trial court found that appellant

“did violate conditions J, K, L, and P, and [found] those allegations true.” The court

sentenced appellant to two years’ confinement.

If court-appointed appellate counsel files an Anders brief asserting that no

arguable grounds for appeal exist, we must independently examine the record to

determine whether the appeal is “wholly frivolous.” Anders v. California, 386 U.S.

738, 744–45 (1967). “An appeal is ‘wholly frivolous’ or ‘without merit’ when it

‘lacks any basis in law or fact.’” Crowe v. State, 595 S.W.3d 317, 319 (Tex. App.—

Dallas 2020, no pet.) (quoting McCoy v. Court of Appeals, 486 U.S. 429, 438 n.10

(1988)). Arguments are frivolous if they cannot conceivably persuade the court. Id.

–2– Counsel states in her Anders brief that she conducted a thorough review of the

record in this case and concluded the “appeal is without merit and wholly frivolous

in that the record reflects no reversible error.” In her motion to withdraw, counsel

confirmed that she mailed a letter to appellant in which she notified him of his right

to file a pro se response and his right to review the record in preparation for filing

the response. Counsel stated she forwarded copies of the reporter’s records and the

clerk’s record to appellant.

This Court also sent appellant a letter informing him that counsel filed an

Anders brief and a motion to withdraw. Copies of the brief and motion were

included with the letter. This Court informed appellant that he had a right to review

the appellate record himself, to file a pro se response, and to seek discretionary

review should the Court find his appeal frivolous. Appellant did not file a response.

Based on our review of the record, we conclude that appellant’s appeal “lacks

any basis in law or fact” and is therefore frivolous. See Crowe, 595 S.W.3d at 319.

Accordingly, we grant counsel’s motion to withdraw, and we affirm the trial court’s

judgment.

/Ken Molberg/ 210089f.u05 KEN MOLBERG DO NOT PUBLISH JUSTICE Tex. R. App. P. 47

–3– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

AVELINO GREGORIO MARCOS, On Appeal from the Criminal District Appellant Court No. 7, Dallas County, Texas Trial Court Cause No. F-0923557-Y. No. 05-21-00089-CR V. Opinion delivered by Justice Molberg. Justices Nowell and THE STATE OF TEXAS, Appellee Goldstein participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 23rd day of May, 2022.

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