Christian Abel Valera v. State

• Court: Court of Appeals of Texas
• Decided: February 11, 2021
• Docket: 02-19-00306-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-19-00306-CR ___________________________

CHRISTIAN ABEL VALERA, Appellant

V.

THE STATE OF TEXAS

On Appeal from Criminal District Court No. 4 Tarrant County, Texas Trial Court No. 1602378R

Before Kerr, Bassel, and Womack, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION

Appellant Christian Abel Valera appeals the trial court’s judgments on two

assault counts. Valera’s appointed counsel filed a motion to withdraw and a brief in

support of his motion in which the attorney asserts that Valera’s appeal is frivolous.

We grant appointed counsel’s motion and affirm the trial court’s judgments on both

counts.

Background

Before a jury and without a plea bargain, Valera pleaded guilty to Count 1—

assault bodily injury of a family or household member by impeding the breathing or

circulation of the blood of the victim with a prior conviction, a second-degree

felony—and Count 2—assault bodily injury of a family or household member with a

prior conviction, a third-degree felony. See Tex. Penal Code Ann. § 22.01(a)(1),

(b)(2)(A), (b-3). Valera also pleaded true to the repeat-offender notice to both counts.

As a result, Valera’s punishment range for Count 1 was that of a first-degree felony

and his punishment range for Count 2 was that of a second-degree felony. See id.

§ 12.42(a), (b).

During voir dire, Valera successfully removed one venire member for cause. At

voir dire’s conclusion, the trial court seated and swore in the jurors without objection.

When testimony started the next day, Valera stated on the record that he

wanted to wear his jail clothing and that he had discussed the matter with his attorney.

The day before, for voir dire, Valera had worn a coat and tie.

2 During trial, the trial court sustained a number of Valera’s objections; on each

occasion, though, Valera requested no additional relief. See Cook v. State, 858 S.W.2d

467, 473 (Tex. Crim. App. 1993). The trial court overruled Valera’s relevance

objection and admitted evidence that an officer had arrested Valera for an earlier

offense. Any dispute over that evidence’s admissibility vanished when Valera later

admitted committing and being convicted for that offense. See Prince v. State,

574 S.W.3d 561, 574 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d). The trial court

overruled the State’s one objection.

At the charge conference, Valera did not object. And the punishment charge

reflects the correct enhanced punishment ranges for both offenses.

After the jury retired to deliberate, it sent the court one note with a question.

Neither the State nor Valera objected to the trial court’s response.

Ultimately, the jury assessed Valera’s punishments at 25 years’ and 10 years’

incarceration for Count 1 and Count 2, respectively. Both punishments were within

the appropriate statutory ranges. See Tex. Penal Code Ann. §§ 12.32, 12.33. In

accordance with the jury verdicts, the trial court sentenced Valera.

The judgments for both counts contained clerical error by reciting that Valera

was to serve his sentences in a state jail facility. Correcting this clerical error, the trial

court signed a judgment nunc pro tunc stating that Valera was to serve his sentences

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

3 Discussion

The record shows no arguable point to pursue.

On appeal, Valera’s court-appointed appellate attorney filed a motion to

withdraw as counsel and a brief in support of that motion. See Anders v. California,

386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967). Although Valera was given an

opportunity to file a response, he filed none. The State responded by letter and agreed

with Valera’s counsel that the appeal was frivolous.

Anders requires that counsel present a professional evaluation of the record

showing why there are no arguable grounds for relief. Cf. id., 87 S. Ct. at 1400.

Because counsel’s Anders brief provides only conclusions, see Thomas v. State, No. 02-

19-00056-CR, 2020 WL 938184, at *1 n.1 (Tex. App.—Fort Worth Feb. 27, 2020, no

pet.) (mem. op., not designated for publication), counsel’s motion and brief do not

strictly follow the requirement of evaluating the record and explaining why an appeal

would be frivolous.1 But because appellate counsel was also Valera’s trial counsel, the

record as a whole shows that counsel had a thorough and accurate knowledge of the

offenses charged, the trial, the punishments assessed, and the absence of arguable

error.

In addition, the brief twice describes Count 1 as an assault family violence with 1

strangulation without mentioning the prior-conviction allegation, meaning that the offense would have been a third-degree felony. In fact, it was a second-degree felony. Compare Tex. Penal Code Ann. § 22.01(b)(2)(B), with id. § 22.01(b-3). The brief also omits any mention of the punishment Valera received on Count 2.

4 When appointed counsel files an Anders motion and brief, we must

independently examine the entire record. See Stafford v. State, 813 S.W.2d 503,

511 (Tex. Crim. App. 1991); Mays v. State, 904 S.W.2d 920, 922–23 (Tex. App.—Fort

Worth 1995, no pet.); see also Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346,

351 (1988). Our independent review of the record confirms counsel’s conclusions, but

we remind counsel that an Anders brief should explain how he arrived at concluding

that the appeal had no arguable points. See Anders, 386 U.S. at 744–45, 87 S. Ct. at

1400.

We have carefully reviewed the record and counsel’s brief and have determined

that this appeal is wholly frivolous and without merit; we find nothing in the record

that might arguably support the appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–

28 (Tex. Crim. App. 2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim.

App. 2006). Because there are no arguable issues in the record, ordering counsel to

file another, more thorough brief or abating the appeal for the appointment of new

appellate counsel would result in a waste of resources for all involved. See Stafford,

813 S.W.2d at 510 & n.2, 511.

Conclusion

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

judgments on Counts 1 and 2, as corrected by the trial court’s judgment nunc pro

tunc.

5 /s/ Elizabeth Kerr Elizabeth Kerr Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: February 11, 2021