Daniel Rene Delarosa v. State

• Court: Court of Appeals of Texas
• Decided: November 6, 2019
• Docket: 10-19-00207-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-19-00207-CR

DANIEL RENE DELAROSA, Appellant v.

THE STATE OF TEXAS, Appellee

From the 13th District Court Navarro County, Texas Trial Court No. D38720-CR

MEMORANDUM OPINION

Appellant, Daniel Rene Delarosa, was charged by indictment with the offense of

aggravated robbery. See TEX. PENAL CODE ANN. § 29.03 (West 2019). Appellant waived

his right to a jury trial and entered an open plea of guilty to the charged offense. The

State later filed “Notice of State’s Intent to Prove Prior Conviction,” which referenced

appellant’s prior conviction for aggravated assault that resulted in his commitment to the

Texas Juvenile Justice Department. The trial court found appellant’s plea was freely and voluntarily made and accepted his plea of guilt. Thereafter, the trial court conducted a

punishment hearing. After hearing testimony from several witnesses, including

appellant and the victim, the trial court found appellant guilty of the charged offense and

that the enhancement was “true” and sentenced appellant to sixty-one years’

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

The trial court certified appellant’s right of appeal, and this appeal followed.

I. ANDERS BRIEF

Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d

493 (1967), appellant’s court-appointed appellate counsel has filed a brief and a motion

to withdraw with this Court, stating that her review of the record revealed no error upon

which an appeal can be predicated. 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) (en banc).

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

1978), appellant’s counsel has carefully discussed why, under controlling authority, there

Delarosa v. State Page 2 are no reversible errors in the trial court’s judgment. Counsel has informed this Court

that she has: (1) examined the record and found no arguable grounds to advance on

appeal; (2) served a copy of the brief and counsel’s motion to withdraw on appellant; and

(3) provided appellant with a copy of the record and informed him of his right to file a

pro se response.1 See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Stafford, 813 S.W.2d at 510

n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. Appellant has filed a pro se response.2

See In re Schulman, 252 S.W.3d at 409.

I. 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, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988). We have reviewed the entire record,

counsel’s brief, and appellant’s pro se response and 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

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

2In her motion to withdraw filed with this Court, appointed appellate counsel indicated that she has “explained that Appellant has the right to review the records and file a pro se brief if he so desires. The undersigned attorney has forwarded a copy of the reporter’s records and clerk’s record to Appellant.” Moreover, in his pro se response, appellant does not complain that he did not have access to the record. Based on the foregoing, we have fair assurance that appellate counsel has complied with the Court of Criminal Appeals’s decision in Kelly v. State. See 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014).

Delarosa v. State Page 3 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.

II. MOTION TO WITHDRAW

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

permission to withdraw as counsel in this case. See Anders, 386 U.S. at 744, 87 S. Ct. at

1400; 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.) (“If 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. 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;

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 must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition and all copies of the petition for discretionary review must be filed with the Clerk of the Court of Criminal Appeals. See id. at R. 68.3. Any petition for discretionary review should comply with the requirements of rule 68.4 of the Texas Rules of Appellate Procedure. See id. at R. 68.4; see also In re Schulman, 252 S.W.3d at 409 n.22.

Delarosa v. State Page 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).

JOHN E. NEILL Justice

Before Chief Justice Gray, Justice Davis, and Justice Neill Affirmed Opinion delivered and filed November 6, 2019 Do not publish [CRPM]

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