Daniel David Avalos v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 8, 2025
• Docket: 13-23-00287-CR
• Status: Published

Opinion

NUMBERS 13-23-00287-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

DANIEL DAVID AVALOS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 226TH DISTRICT COURT OF BEXAR COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices West and Cron Memorandum Opinion by Chief Justice Tijerina

Appellant Daniel David Avalos was convicted of five counts of online solicitation of

a minor, a third-degree felony, and was sentenced to four years and six months

imprisonment on each count to run consecutively. See TEX. PENAL CODE ANN.

§§ 3.03(b)(2)(A), 33.021(b). Appellant’s court-appointed counsel has filed an Anders brief stating that there are no arguable grounds for appeal. See Anders v. California, 386 U.S.

738, 744 (1967). We affirm the trial court’s judgment.

I. ANDERS BRIEF1

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

filed a brief and a motion to withdraw with this Court in this cause, stating that his review

of the record yielded no grounds of reversible error upon which an appeal could 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, 406 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–Edinburg 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, 319–22 (Tex. Crim. App. 2014),

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

reversible error in the trial court’s judgment. Appellant’s counsel also informed this Court

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

1 This case is before this Court on transfer from the Fourth Court of Appeals in San Antonio pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.

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

of his right to file a pro se response, to review the record prior to filing that response, and

to seek discretionary review if we conclude that the appeal is frivolous; and (4) provided

appellant with a form motion for pro se access to the appellate record that only requires

appellant’s signature and date with instructions to file the motion within ten days. See

Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20; see also In re Schulman, 252

S.W.3d at 408–09. 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. Appellant did

not file a pro se response.

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 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,

827–28 (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 requirements of Texas Rule

of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 511.

III. MOTION TO WITHDRAW

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

permission to withdraw as counsel in this cause. See Anders, 386 U.S. at 744; see also

In re Schulman, 252 S.W.3d at 408 n.17. We grant counsel’s motions to withdraw. Within

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

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

petition for discretionary review in this cause.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).

IV. CONCLUSION

We affirm the trial court’s judgment.

JAIME TIJERINA Chief Justice

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

Delivered and filed on the 8th day of May, 2025.

2 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 Texas 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.