Cristobal Garcia v. State

• Court: Court of Appeals of Texas
• Decided: July 9, 2009
• Docket: 13-09-00056-CR
• Status: Published

Opinion

NUMBER 13-09-00056-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CRISTOBAL GARCIA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court of San Patricio County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela Memorandum Opinion by Justice Rodriguez

Appellant, Cristobal Garcia, appeals from the revocation of his community

supervision. On November 9, 2007, pursuant to a plea bargain agreement, appellant

pleaded guilty to the burglary of a building, a state-jail felony. See TEX . PENAL CODE ANN .

§ 30.02(a), (c)(1) (Vernon 2003). The trial court sentenced appellant to eighteen months'

confinement in a state jail facility and assessed a fine of $1,500.00, restitution in the amount of $2,396.00, and court costs. The court suspended imposition of the sentence

and placed appellant on community supervision for three years.

On September 24, 2008, the State filed its motion to revoke appellant's community

supervision, alleging that appellant had violated his community supervision when he failed

to report, to pay supervisory fees, and to pay crime stopper fees. At the evidentiary

hearing, appellant pleaded true to the allegations in the motion. A stipulation that appellant

was the same person placed on community supervision in January 2007 and a stipulation

and confession that appellant admitted to the violations were admitted into evidence. The

documents were signed by appellant and approved by the trial court and counsel for the

State and for appellant. The trial court revoked appellant's community supervision.

Declining to follow the agreed recommendation of twelve months' confinement, the trial

court sentenced appellant to eighteen months' confinement in a state jail facility. It also

reassessed costs and fines. This appeal ensued.

Concluding "[t]his appeal is frivolous and without merit," appellant's counsel filed a

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), appellant’s

court-appointed appellate counsel has filed a brief with this Court, stating that "[t]here are

no meritorious points of error to present." Counsel’s brief discusses the relevant portions

of the record. 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.

2 Crim. App. 1991). Including record references to the facts and setting out pertinent legal

authorities, appellant's counsel has discussed why, under controlling authority, there are

no errors in the trial court's judgment. See High v. State, 573 S.W.2d 807, 813 (Tex. Crim.

App. [Panel Op.] 1978).

After searching the record and researching the applicable law, counsel has found

no reversible error reflected by the record and has forwarded a copy of the brief and

request to withdraw as counsel to appellant. Counsel also informed appellant of his right

to review the record and to file a pro se response.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 appellant 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, 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). We have reviewed the entire record and counsel's brief and 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.

1 The Texas Court of Crim inal Appeals has held that “the pro se response need not com ply 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 m eritorious issues.” In re Schulman, 252 S.W .3d 403, 409 n.23 (Tex. Crim . App. 2008) (quoting W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App.–W aco 1997, no pet.)). 3 III. Motion to Withdraw

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

to withdraw as counsel for appellant. 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, 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 April 16, 2009. Within five days of the date

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

appellant and to advise appellant 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).

Memorandum Opinion delivered and filed this 2nd day of July, 2009.

2 No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Crim inal Appeals, he m ust 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 m ust be filed within thirty days from the date of either this opinion or the last tim ely m otion for rehearing that was overruled by this Court. See T EX . R. A PP . P. 68.2. Any petition for discretionary review m ust be filed with this Court, after which it will be forwarded to the Texas Court of Crim inal Appeals. See T EX . R. A PP . P. 68.3; 68.7. Any petition for discretionary review should com ply with the requirem ents of Rule 68.4 of the Texas Rules of Appellate Procedure. See T EX . R. A PP . P. 68.4.