Cirino Pastor Villafana Varga v. State

• Court: Court of Appeals of Texas
• Decided: September 2, 2016
• Docket: 13-16-00036-CR
• Status: Published

Opinion

NUMBER 13-16-00036-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CIRINO PASTOR VILLAFANA-VARGA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 54th District Court of McLennan County, Texas.

MEMORANDUM OPINION Before Justices Rodriguez, Benavides, and Perkes1 Memorandum Opinion by Justice Perkes Appellant Cirino Pastor Villafana-Varga appeals his conviction of indecency with a

child by contact, a second degree felony. See TEX. PENAL CODE ANN. § 21.11, (West,

1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has

been transferred to this Court from the Third Court of Appeals in Austin. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.). Westlaw through 2015 R.S.). After appellant pleaded not guilty, a jury found him guilty

of the offense and assessed punishment at thirteen years’ confinement. Appellant’s

court-appointed counsel filed an Anders brief. See Anders v. California, 386 U.S. 738,

744 (1967). We affirm.

I. ANDERS BRIEF

Pursuant to Anders v. California, appellant’s court-appointed appellate counsel

filed a brief and a motion to withdraw with this Court, stating that his review of the record

yielded no grounds of error upon which an appeal can be predicated. See id. Counsel’s

brief meets the requirements of Anders as it presents a professional evaluation

demonstrating why there are no arguable grounds to advance on appeal. See In re

Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“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).

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

Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 318–19 (Tex. Crim. App. 2014),

appellant’s counsel carefully discussed why, under controlling authority, there is no

reversible error in the trial court's judgment. Counsel has informed this Court, in writing,

that counsel has: (1) notified appellant that counsel filed an Anders brief and a motion

to withdraw; (2) provided appellant with copies of both pleadings; (3) informed appellant

2 of appellant’s rights to file a pro se response,2 review the record preparatory to filing that

response, and seek discretionary review if the court of appeals concludes that the appeal

is frivolous; and (4) provided appellant with a form motion for pro se access to the

appellate record, lacking only appellant’s signature and the date and including the mailing

address for the court of appeals, with instructions to file the motion within ten days. See

Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 318–19, Stafford: 813 S.W.2d at 510 n.3;

see also In re Schulman, 252 S.W.3d at 409 n.23.

In this case, appellant filed neither a timely motion seeking pro se access to the

appellate record nor a motion for extension of time to do so. No pro se brief was filed.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we 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). A court of appeals has two options when an Anders brief and a

subsequent pro se response are filed. After reviewing the entire record, it may:

(1) determine that the appeal is wholly frivolous and issue an opinion explaining that it

finds no reversible error; or (2) determine that there are arguable grounds for appeal and

remand the case to the trial court for appointment of new appellate counsel. Bledsoe v.

State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). If the court finds arguable

grounds for appeal, it may not review those grounds until after new counsel has briefed

2 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.)). 3 those issues on appeal. Id.

We reviewed the entire record and counsel’s brief, and we find nothing that would

arguably support an appeal. See id. at 827–28 (“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. There is no

reversible error in the record. Accordingly, the judgment of the trial court is affirmed.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s attorney asked this Court for permission to

withdraw as counsel for appellant. See 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.) (“[I]f an attorney believes the appeal is frivolous, he must withdraw from

representing 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.

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

this opinion and this Court’s judgment to appellant and to advise him of his right to file a

petition for discretionary review.3 See TEX. R. APP. P. 48.4; see also In re Schulman, 252

3 No substitute counsel will be appointed. Should appellant 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 or timely motion for en banc reconsideration 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 Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4. 4 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

GREGORY T. PERKES Justice

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

Delivered and filed the 2nd day of September, 2016.