David Isaac Cantu v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 3, 2022
• Docket: 05-20-01003-CR
• Status: Published

Opinion

AFFIRMED and Opinion Filed August 3, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-01003-CR

DAVID ISAAC CANTU, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F20-36592-T

MEMORANDUM OPINION Before Justices Schenck, Osborne, and Smith Opinion by Justice Schenck David Isaac Cantu appeals his conviction for driving while intoxicated, three

or more. We affirm the trial court’s judgment. Because all issues are settled in law,

we issue this memorandum opinion. TEX. R. APP. P. 47.4.

BACKGROUND

Appellant was arrested for the offense of driving while intoxicated on April

16, 2020. Appellant was required as a condition of bond to place an interlock device

in his car and submit to random urine analysis tests. While on bond, appellant was

arrested in May 2020 for another driving while intoxicated offense in Denton County

and admitted to drinking alcohol on two other occasions: July 25 and September 5, 2020.

Appellant and the State agreed appellant would plead guilty and the State

would recommend a sentence of 7 years imprisonment, probated for 5 years, but the

parties would allow the trial court to decide what treatment, if any, appellant would

be required to complete as a condition of his probation.

On September 15, 2020, appellant entered a plea of guilty to the charged

offense of driving while intoxicated, third or more. The trial court accepted

appellant’s guilty plea, found there was sufficient evidence to prove his guilt, and

passed the case for a punishment hearing later that day.

At the punishment hearing, the trial court acknowledged that appellant

appeared for an open plea. The State requested that the trial court take judicial notice

of the Community Supervision and Corrections Department Assessment Treatment

and Research Services’ (“ATRS”) evaluation. Appellant testified on his own behalf

indicating he was living at Solutions of North Texas, a sober living facility, he had

completed an Intensive Outpatient Program, he was participating in a Supportive

Outpatient Program, and he was also attending Alcoholics Anonymous meetings and

working closely with a sponsor. Appellant further testified that he had worked as an

insurance claims adjustor for 17 years. He expressed his concern that if he were

ordered to go to inpatient treatment, he might lose his job. Appellant acknowledged

on cross-examination that he has had some relapses while on bond and was arrested

for another driving while intoxicated in Denton County about a month after this

–2– offense.

At the conclusion of the punishment hearing, appellant requested that he be

permitted to continue his current treatment and continue living at the sober living

facility. The State requested that the trial court follow the recommendations of

ATRS. The trial court found appellant guilty of the charged offense and sentenced

him to 7 years imprisonment, probated for 5 years. The trial court also ordered

appellant to serve 10 days in county jail, complete inpatient treatment at the Wilmer

Judicial Treatment Center, and complete the 18-month after care program as

conditions of his probation.

The trial court certified appellant’s right to appeal. This appeal followed.

DISCUSSION

Appellant’s appointed counsel filed an Anders brief and motion to withdraw

as counsel stating that she diligently reviewed the entire appellate record and that, in

her opinion, there are no meritorious issues on appeal. See Anders v. California, 386

U.S. 738, 744 (1967). Counsel’s brief meets the requirements of Anders as it

presents a professional evaluation showing why there are no non-frivolous grounds

for advancing an appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim.

App. 2008) (orig. proceeding).

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, an appeal from the judgment and sentence is without merit and

–3– frivolous because the record reflects no reversible error and, in her opinion, there are

no grounds upon which an appeal can be predicated. Counsel specifically noted,

from her review of the following, that she found no issues presented for review

regarding (1) the sufficiency of the indictment,1 (2) the evidence presented at the

plea,2 (3) the voluntariness of appellant’s plea of guilty and his competency at the

time of his plea,3 and (4) the judgment and sentence.4 In addition, counsel reviewed

the performance of trial counsel and concluded the record does not reflect appellant

received ineffective assistance of counsel.

Counsel delivered a copy of the brief to appellant, and by letter dated April 1,

2021, we advised appellant of his right to file a pro se response by May 7, 2021. See

Kelly v. State, 436 S.W.3d 313, 319–21 (Tex. Crim. App. 2014) (noting appellant

has right to file pro se response to Anders brief filed by counsel). We advised

appellant that failure to file a pro se response by that date would result in the case

being submitted on the Anders brief alone. Appellant did not file a response.

Upon receiving an Anders brief, this Court must conduct a full examination

of all proceedings to determine whether the case is wholly frivolous. Penson v. Ohio,

1 The indictment contained all elements of the offense and conferred jurisdiction on the trial court. See TEX. PENAL CODE ANN. §§ 49.04(a); 49.09(b)(2). 2 Appellant executed a written sworn judicial confession in which he stated that he committed each element of the offence as alleged in the indictment. 3 The record shows the trial court admonished appellant before he entered his plea, and that appellant was competent and understood his rights and freely and voluntarily waived them. 4 Driving while intoxicated, three or more, is a third-degree felony. TEX. PENAL CODE ANN. § 49.09(b)(2). A third-degree felony is punishable by imprisonment for any term of not more than 10 years or less than 2 years. Id. § 12.34. The trial court imposed a 7 year sentence, probated for 5 years. –4– 488 U.S. 75, 80 (1988). Having reviewed the entire record and counsel’s brief, we

find nothing that would arguably support the appeal. See Bledsoe v. State, 178

S.W.3d 824, 826–28 (Tex. Crim. App. 2005) (explaining appellate court’s duty in

Anders cases). Accordingly, we affirm the trial court’s judgment.

In accordance with Anders, counsel has filed a motion to withdraw from the

case. See Anders, 386 U.S. at 744; 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.”). 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 the opinion and judgment to appellant and to advise appellant of

his right to pursue a petition for review. See TEX. R. APP. P. 48.4.

–5– CONCLUSION

We affirm the trial court’s judgment.

/David J. Schenck/ DAVID J. SCHENCK JUSTICE

DO NOT PUBLISH TEX. R. APP. P. 47

201003F.U05

–6– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DAVID ISAAC CANTU, Appellant On Appeal from the 283rd Judicial District Court, Dallas County, Texas No. 05-20-01003-CR V. Trial Court Cause No. F-2036592-T. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Schenck. Justices Osborne and Smith participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 3rd day of August, 2022.

–7–