DeLeon, Noe Ruiz v. State
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Opinion
NUMBER 13-99-724-CR AND 13-99-725-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
NOE RUIZ DELEON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court
of Nueces County, Texas.
M E M O R A ND U M O P I N I O N
Before Chief Justice Valdez and Justices Hinojosa and Castillo
Opinion by Chief Justice Valdez
In Cause No. 13-99-00724-CR, appellant, Noe Ruiz De Leon, was indicted as a habitual felony offender for the state jail felony of unlawful possession of heroin. Tex. Health & Safety Code Ann. § 481.115 (Vernon 2003). In Cause No. 13-99-00725-CR, appellant was indicted for the state jail felony of possession of heroin. See id. In each cause, appellant pleaded guilty pursuant to a plea bargain and received a two-year state jail sentence. The punishments assessed did not exceed the sentences recommended by the prosecutor and agreed to by the appellant. The sentences were ordered to run concurrently. Appellant filed pro se notices of appeal in each cause.
The trial court certified that each case “is a plea bargain case and the defendant has NO right of appeal.” See Tex. R. App. P. 25.2(a)(2). We conclude that these appeals are frivolous and without merit. We dismiss these appeals.
As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4.
Anders Briefs
Appellant’s counsel has filed briefs in which he concludes that these appeals are wholly frivolous and without merit. The briefs meet the requirements of Anders v. California, 386 U.S. 738 (1967), as they present professional evaluations regarding why there are no arguable grounds for advancing appeals in these cases. See 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 (Tex. Crim. App. [Panel Op.] 1978), counsel has carefully discussed why, under the controlling authorities, there are no errors in the trial court’s judgments. See id. at 813.
After reviewing counsel’s briefs, the Court noted they did not show that counsel had informed appellant that he had the right to review the records and file briefs on his own behalf. Accordingly, we abated the appeals to allow counsel to notify appellant of his rights. Counsel has certified his compliance with this Court’s order. If appellant wished to file any pro se briefs, they were to be filed within sixty days. More than sixty days have passed, and no such briefs have been filed.
Pursuant to rule 25.2(d), an appeal must be dismissed if, as in the instant cases, a certification showing the right to appeal has not been made part of the record. See Tex. R. App. P. 25.2(d). Nevertheless, the certifications showing no right to appeal do not eliminate our duty to perform an independent review of the records upon receipt of the Anders briefs. Chavez v. State, Nos. 13-03-174-CR & 13-03-175-CR, 2004 Tex. App. LEXIS 5100, at *3 (Tex. App.–Corpus Christi June 10, 2004, no pet. h.) (designated for publication); see Penson v. Ohio, 488 U.S. 75, 80 (1988) (upon receipt of “frivolous appeal” brief, appellate courts must conduct “full examination of all the proceeding[s] to decide whether the case is wholly frivolous”) .
Independent Review of the Record
In our independent review of the record under Anders and Penson in an appeal following a guilty plea, we first determine if the appellant executed a valid waiver of the right to appeal. Escochea v. State, No. 13-01-761-CR, 2004 Tex. App. LEXIS 5366, at *32 (Tex. App.–Corpus Christi June 17, 2004, no pet. h.). After examining the records, we conclude that appellant did not waive his right to appeal. Our review of the records also reveals that the plea bargains in these cases incorporated agreed recommendations as to punishment that were accepted by the trial court. See Tex. R. App. P. 25.2(a)(2); see also Chavez, 2004 Tex. App. LEXIS 5100, at *37. Accordingly, given that appellant is not appealing from a revocation or adjudication proceeding, we examine the records: (1) for jurisdictional defects in all cases; (2) for matters raised by written motion ruled on before trial in all cases; (3) for all matters the trial court granted permission to appeal; and (4) in all cases, the legality of the sentence imposed as authorized by law. Chavez, 2004 Tex. App. LEXIS 5100, at *31-*32.
A review of the clerks’ records reveals no arguable jurisdictional defects. The records contain no motions ruled on before trial. The records contain no indication that the trial court granted appellant permission to appeal. Appellant was sentenced to two years of imprisonment, which is within the range authorized by law and is not illegal. See Tex. Health & Safety Code Ann. § 481.115(a), (b) (Vernon 2003); Tex. Pen. Code Ann. § 12.35 (Vernon 2003).
We have carefully reviewed the appellate records and counsel’s briefs and have found nothing in the records that might arguably support the appeals. We agree that the appeals are without merit. See Stafford, 813 S.W.2d at 511.
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