David Avellaneda v. State

• Court: Court of Appeals of Texas
• Decided: May 2, 2013
• Docket: 13-12-00595-CR
• Status: Published

Opinion

NUMBER 13-12-00595-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

DAVID AVELLANEDA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 347th District Court of Nueces County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion by Justice Longoria Appellant, David Avellaneda, was charged by indictment with intentional or

knowing injury to a child, a first-degree felony. TEX. PENAL CODE ANN. § 22.04(a), (e)

(West Supp 2011). He pleaded guilty without a plea agreement to the lesser-included

offense of reckless injury to a child, a second-degree felony. Id. § 22.04(f). The trial court judge assessed imprisonment for a term of twenty years in the Texas Department

of Criminal Justice—Institutional Division. This appeal followed.1

I. ANDERS BRIEF

Appellant’s court-appointed appellant counsel has filed a brief and motion to

withdraw with this Court pursuant to Anders v. California, 386 U.S. 738, 744 (1967),

stating that his review of the record yielded no grounds of error upon which to base an

appeal. 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) (“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, 507 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978), 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

that he 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) informed appellant of his right to review the record and to file a pro se response.

See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman,

1 The trial court granted appellant the right to appeal even though he executed a waiver of his appellate rights as part of his guilty plea.

2 252 S.W.3d at 409 n.23. More than a sufficient time has passed but appellant has not

responded by filing 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 entire record, including appellant’s judicial

confession and the transcript of the sentencing hearing, and counsel’s brief, and we

have found nothing that would arguably support an appeal. See Bledsoe, 178 S.W.3d

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”). We agree that there is no reversible error. 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 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.) (“[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. Counsel is ordered to send a copy of this opinion and this Court’s

judgment to appellant within five days of the date of this Court’s opinion, and to advise

him of his right to file a petition for discretionary review with the court of criminal

3 appeals.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).

_______________________ NORA L. LONGORIA Justice Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 2nd day of May, 2013.

2 No substitute counsel will be appointed. Should Avellaneda 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 TEX. R. APP. P. 68.3. Any petition for discretion review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4.