Debra Jean Velasquez v. State

• Court: Court of Appeals of Texas
• Decided: March 29, 2018
• Docket: 13-16-00668-CR
• Status: Published

Opinion

NUMBER 13-16-00668-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

DEBRA JEAN VELASQUEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 28th District Court of Nueces County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Contreras and Benavides Memorandum Opinion by Chief Justice Valdez

Appellant Debra Jean Velasquez pleaded guilty to the offense of engaging in

organized criminal activity, a first-degree felony, and the trial court sentenced her to fifteen

years in prison. See TEX. PENAL CODE ANN. § 71.02 (West, Westlaw through 2017 1st

C.S.). This appeal followed. Velasquez’s court-appointed counsel has filed an Anders

brief. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm. I. ANDERS BRIEF

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

has filed a brief and a motion to withdraw with this Court, stating that his review of the

record yielded no grounds of reversible error upon which an appeal can be predicated.

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) (orig. proceeding) (“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, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014),

Velasquez’s counsel carefully discussed why, under controlling authority, there is no

reversible error in the trial court’s judgment. Velasquez’s counsel has also informed this

Court that he has (1) notified Velasquez that counsel has filed an Anders brief and a

motion to withdraw; (2) provided her with copies of both pleadings; (3) informed her of her

rights to file a pro se response, to review the record preparatory to filing that response,

and to seek discretionary review in the Texas Court of Criminal Appeals if this Court finds

that the appeal is frivolous; and (4) provided her with a form motion for pro se access to

the appellate record with instructions to file the motion in this Court. See Anders, 386

U.S. at 744; Kelly, 436 S.W.3d at 319–20, Stafford, 813 S.W.2d at 510 n.3; see also In re

2 Schulman, 252 S.W.3d at 409 n.23. More than an adequate period has passed, and

Velasquez has not filed a pro se response. 1

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 we 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 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.

III. MOTION TO WITHDRAW

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

permission to withdraw as counsel. 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

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

3 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 Velasquez and to advise her

of her right to file a petition for discretionary review. 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).

s/ Rogelio Valdez ROGELIO VALDEZ Chief Justice

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

Delivered and filed this 29th day of March, 2018.

2 No substitute counsel will be appointed. If Velasquez seeks further review of this case by the Texas Court of Criminal Appeals, she 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. A 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.