Carlos Dominguez Rivera v. State

• Court: Court of Appeals of Texas
• Decided: August 18, 2011
• Docket: 13-10-00684-CR
• Status: Published

Opinion

NUMBER 13-10-00684-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CARLOS DOMINGUEZ RIVERA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court of Calhoun County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Justice Rodriguez Appellant Carlos Dominguez Rivera appeals from his conviction, by a jury, for

assault against a public servant, for which he was sentenced to twelve years'

incarceration. See TEX. PENAL CODE ANN. § 22.01(b)(1) (West Supp. 2010).

Concluding that Rivera's appeal in this case "is without merit and frivolous," counsel filed an Anders brief in which he reviewed the merits, or lack thereof, of the appeal. We

affirm.

I. COMPLIANCE WITH ANDERS V. CALIFORNIA

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), Rivera's

court-appointed appellate counsel has filed a brief with this Court, stating that he has

"diligently searched the [record] . . . and [has] researched the law applicable to the facts

and issues presented" and in his professional opinion, "no reversible error is reflected by

the record." After discussing pre-trial issues, voir dire, the evidence presented at trial,

the jury charge, and one arguable ground of error related to defense counsel's

misstatement of Rivera's eligibility for community supervision, counsel concludes that "no

reasonably arguable factual or evidentiary issue exists in the record which would amount

to reversible error." 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.") (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) (en banc).

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

Op.] 1978), Rivera's counsel has, thus, carefully discussed why, under controlling

authority, there are no errors 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 record and counsel's brief and motion to withdraw on

2 Rivera, and (3) informed Rivera of his right to review the record and to file a pro se

response within thirty days.1 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. More than an adequate period of

time has passed, and Rivera has not filed a pro se response. See In re Schulman, 252

S.W.3d at 409.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, this Court 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 v. State, 178

S.W.3d 824, 826-28 (Tex. Crim. App. 2005) ("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. Accordingly,

we affirm the judgment of the trial court.

III. MOTION TO WITHDRAW

In accordance with Anders, Rivera's attorney has asked this Court for permission

to withdraw as counsel for Rivera. 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.) (noting that "[i]f an attorney believes the appeal is frivolous,

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) (orig. proceeding) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)). 3 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

motion to withdraw that was carried with the case on June 7, 2011. Within five days of

the date of this Court’s opinion, counsel is ordered to send a copy of the opinion and

judgment to Rivera and to advise Rivera 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 18th day of August, 2011.

2 No substitute counsel will be appointed. Should Rivera wish to seek further review of this case 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 this Court, after which it will be forwarded to the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3; 68.7. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4. 4