Baldomero Dela Rosa v. State

Opinion

Opinion issued July 5, 2012

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-10-00984-CR ——————————— BALDOMERO DELA ROSA, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court Harris County, Texas Trial Court Case No. 1253939

MEMORANDUM OPINION

Appellant, Baldomero Dela Rosa, pleaded guilty, without an agreed

recommendation on punishment, to the first degree felony offense of “super” aggravated sexual assault of a child under the age of fourteen.1 The trial court

accepted appellant’s guilty plea and assessed punishment at thirty years’

confinement. The trial court certified that this was not a plea bargain case and that

appellant had the right to appeal. Appellant timely filed a notice of appeal.

Appellant’s court-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 judgment of the trial court.

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

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

request to withdraw is well-founded. Id.

We may not grant the motion to withdraw until:

(1) the attorney has sent a copy of her Anders brief to her client, along with a letter explaining that the defendant has the right to

1 See TEX. PENAL CODE ANN. §§ 22.021(a)(1)(B)(iii), (a)(2)(A)(ii), (f)(2) (Vernon Supp. 2011) (providing that minimum term of imprisonment is twenty-five years if victim is under fourteen at time of offense and defendant commits aggravated sexual assault and “by acts or words places the victim in fear that . . . death, serious bodily injury, or kidnapping will be imminently inflicted on any person”). 2 file a pro se brief within thirty days, and she has ensured that her client has, at some point, been informed of his right to file a pro se petition for discretionary review; (2) the attorney has informed us that she has performed the above duties; (3) the defendant has had time in which to file a pro se response; and (4) we have reviewed the record, the Anders brief, and any pro se brief.

See id. at 408–09. If we agree that the appeal is wholly frivolous, we will grant the

attorney’s motion to withdraw and affirm the judgment of the trial court. See

Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009). If we conclude that

arguable grounds for appeal exist, we will grant the motion to withdraw, abate the

case, and remand it to the trial court to appoint new counsel to file a brief on the

merits. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).

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

evaluation of the record. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also

High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel supplies us

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

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

unable to advance any grounds of error that warrant reversal. See Anders, 386 U.S.

at 744, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 154 (Tex. App.—

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

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

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

therefore, the appeal is frivolous. See Garner, 300 S.W.3d at 767 (explaining that

frivolity is determined by considering whether there are “arguable grounds” for

review); Schulman, 252 S.W.3d at 407 n.12 (explaining that appeal is frivolous

when it does not present any argument that could “conceivably persuade the

court”); Bledsoe, 178 S.W.3d at 826–27 (emphasizing that reviewing court—and

not counsel—determines, after full examination of proceedings, whether appeal is

wholly frivolous). Although we may issue an opinion explaining why an appeal

lacks arguable merit, we are not required to do so. See Garner, 300 S.W.3d at 767.

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 withdraw2 and affirm the judgment of the trial

court. Attorney Dionne S. Press 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).

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 Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005); Stephens v. State, 35 S.W.3d 770, 771–72 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (per curiam). 4 PER CURIAM

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Do Not Publish. TEX. R. APP. P. 47.2(b).