David Villegas Jr. v. State

• Court: Court of Appeals of Texas
• Decided: August 20, 2020
• Docket: 13-19-00496-CR
• Status: Published

Opinion

NUMBER 13-19-00496-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

DAVID VILLEGAS JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 25th District Court of Guadalupe County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Perkes, and Tijerina Memorandum Opinion by Justice Perkes

A jury convicted appellant David Villegas Jr. of assault involving family violence

with a previous conviction, a third-degree felony. See TEX. PENAL CODE ANN.

§ 22.01(b)(2). The jury sentenced Villegas to nine years’ imprisonment. See id.

§ 12.34(a). Villegas’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. 1

I. ANDERS BRIEF

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

filed a motion to withdraw and a brief in support thereof in which she states that she has

diligently reviewed the entire record and has found no non-frivolous grounds for appeal.

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, 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–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, 318–19 (Tex. Crim. App. 2014), Villegas’s

counsel carefully discussed why, under controlling authority, there is no reversible error

in the trial court’s judgment. Counsel has informed this Court in writing that counsel has:

(1) notified Villegas that counsel has filed an Anders brief and a motion to withdraw; (2)

provided Villegas with copies of both pleadings, as well as a copy of the appellate record;

1 This appeal was transferred to us from the Fourth Court of Appeals pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.

2 and (3) informed Villegas of his rights to file a pro se response 2 and seek discretionary

review if the court of appeals concludes that the appeal is frivolous. See Anders, 386 U.S.

at 744; Kelly, 436 S.W.3d at 318–19; see also In re Schulman, 252 S.W.3d at 409 n.23.

An adequate time has passed, and Villegas has not filed 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 and counsel’s brief and 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 requirement of Texas Rule of Appellate

Procedure 47.1.”); Stafford, 813 S.W.2d at 509.

III. MOTION TO WITHDRAW

In accordance with Anders, Villegas’s attorney has 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 (“[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.” (citing Jeffery v. State, 903 S.W.2d 776, 779–

2 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.)).

3 80 (Tex. App.—Dallas 1995, no pet.) (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 Villegas and to advise him of his right

to file a petition for discretionary review. 3 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.

GREGORY T. PERKES Justice

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

Delivered and filed the 20th day of August, 2020.

3 No substitute counsel will be appointed. Should Villegas 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 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.