David Ignacio Cristan v. the State of Texas

Opinion

Opinion issued December 22, 2022

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-21-00647-CR ——————————— DAVID IGNACIO CRISTAN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 56th District Court Galveston County, Texas Trial Court Case No. 19-CR-2275

MEMORANDUM OPINION

Appellant David Ignacio Cristan pleaded not guilty to the felony offense of

sexual assault of a child. See TEX. PENAL CODE § 22.011(a)(2). Following a jury

trial, the jury found Appellant guilty and assessed his punishment at confinement for twenty years in the Texas Department of Criminal Justice.1 The trial court

certified that this case is not a plea-bargain case and Appellant has the right to

appeal. Appellant timely filed a notice of appeal.

On appeal, Appellant’s appointed counsel filed a motion to withdraw, along

with a supporting brief, stating the record presents no reversible error. He asserts

the appeal is without merit and frivolous. See Anders v. California, 386 U.S. 738

(1967). Counsel’s brief meets the Anders requirements. The brief presents a

professional evaluation of the record and provides references to the record and

legal authority. Id. at 744; see also High v. State, 573 S.W.2d 807, 812 (Tex.

Crim. App. 1978). Counsel explains that after thoroughly reviewing the record, he

is unable to advance any grounds of error warranting reversal. See Anders, 386

U.S. at 744; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st

Dist.] 2006, no pet.). The State waived its right to file a response and Appellant

did not file a pro se brief.2

After conducting an independent review of the entire record on appeal, we

conclude there is no reversible error in the record, there are no arguable grounds

1 No fine was assessed. 2 Appellant’s appointed counsel stated in his brief that he provided Appellant with a copy of counsel’s motion to withdraw and of his brief; advised Appellant of his right to file a pro se response to the brief; and advised Appellant he had a right to review the trial record and to prepare his own appellate brief. In addition, appointed counsel provided Appellant with the form required to obtain a free copy of the record and the address to which the form should be mailed.

2 for review, and the appeal is frivolous. See Anders, 386 U.S. at 744 (emphasizing

that reviewing court—and not counsel—determines, after full examination of

proceedings, whether appeal is frivolous); Garner v. State, 300 S.W.3d 763, 767

(Tex. Crim. App. 2009) (reviewing court must determine whether arguable

grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim.

App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing court determines

whether arguable grounds exist by reviewing entire record). We note an appellant

may challenge a holding that there are no arguable grounds for appeal by filing a

petition for discretionary review with the Texas Court of Criminal Appeals. See

Bledsoe, 178 S.W.3d at 827 & n.6.

We affirm the judgment of the trial court and grant counsel’s motion to

withdraw.3 Court-appointed counsel, Joel H. Bennett, must immediately send

Appellant the notice required under Texas Rule of Appellate Procedure 6.5(c) and

file a copy of the notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(c).

Panel consists of Justices Kelly, Rivas-Molloy, and Guerra.

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

3 Appointed counsel still has a duty to inform Appellant of the result of this appeal and that he may, on his own, pursue discretionary review with the Texas Court of Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).