Diego Armando Hernandez-Munoz v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 8, 2023
• Docket: 05-21-00716-CR
• Status: Published

Opinion

Order entered February 8, 2023

In the Court of Appeals Fifth District of Texas at Dallas

No. 05-21-00716-CR

DIEGO ARMANDO HERNANDEZ-MUNOZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F-1976763-Q

ORDER

Before the Court is Valencia Bush’s Motion to Withdraw as Counsel for

appellant Diego Armando Hernandez-Munoz. Ms. Bush filed her motion on

January 11, 2023, the day after we issued our opinion affirming Mr. Hernandez-

Munoz’s conviction.

Ms. Bush asks to withdraw because she “filed a brief that does not present a

point of error in favor of Appellant or arguable ground for relief.” But Ms. Bush

did not file a brief that complies with the requirements of Anders v. California, 386 U.S. 738 (1967). See Kelly v. State, 436 S.W.3d 313, 319–21 (Tex. Crim. App.

2014); High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978).

Rather, Ms. Bush filed a brief presenting a single issue for our review, based on

non-reversible error.

Moreover, the record does not reflect Ms. Bush’s compliance with the

additional requirements outlined in Kelly. See 436 S.W.3d at 319–20. Indeed,

nothing in either Ms. Bush’s motion or the appellate record suggests Ms. Bush:

(1) timely notified Mr. Hernandez-Munoz both that she had concluded his appeal

was frivolous and that she intended to withdraw from representation; (2) informed

Mr. Hernandez-Munoz of his right to file a pro se response before we submitted the

case; (3) took concrete steps to facilitate Mr. Hernandez-Munoz’s ability to review

the record in order to timely file such a response; or (4) informed Mr. Hernandez-

Munoz of his right to seek discretionary review in the Court of Criminal Appeals in

the event we determined his appeal was frivolous. See id.

To the extent Ms. Bush’s motion seeks leave to retroactively comply with

Anders, we deny that request. Ms. Bush filed Mr. Hernandez-Munoz’s brief on

April 1, 2022, after receiving an extension of the March 20, 2022 deadline. Neither

Ms. Bush nor the State requested oral argument, and we notified the parties on July

28, 2022, that we would submit the case without argument on October 4, 2022. We

issued our opinion and judgment on January 10, 2023. At no point before then did Ms. Bush attempt to comply with Anders and its progeny. She cannot do so now,

after our opinion and judgment have issued. We DENY Ms. Bush’s motion to

withdraw.

/s/ CORY L. CARLYLE JUSTICE