Edward Salazar v. State

• Court: Court of Appeals of Texas
• Decided: July 1, 2004
• Docket: 13-02-00561-CR
• Status: Published

Opinion

NUMBER 13-02-561-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

EDWARD SALAZAR,                                                         Appellant,

v.

THE STATE OF TEXAS,                                                      Appellee.

___________________________________________________________________

On appeal from the 319th District Court

of Nueces County, Texas.

__________________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Opinion by Justice Rodriguez

         Appellant, Edward Salazar, was indicted for three counts of aggravated sexual assault. See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2004). Pursuant to a plea agreement, appellant pled guilty to count one of the offense, and the State dismissed counts two and three. On December 17, 2001, the trial court deferred a finding of guilt and placed appellant on deferred community supervision for five years. On April 9, 2002, the State filed a motion to revoke appellant's community supervision, alleging violations of nine conditions of his supervision. On September 19, 2002, at his revocation hearing, appellant pled "true" to the alleged violations. The trial court revoked appellant's community supervision and sentenced him to five years in the Texas Department of Criminal Justice, Institutional Division. The trial court has certified that this 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 the appeal is frivolous and without merit. Therefore, we dismiss.

I. Facts

         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.

II. Anders Brief

         Appellant's court-appointed counsel has filed a brief in which he has concluded that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel certifies: (1) he diligently reviewed the record for error; (2) he was unable to find any error which would arguably require a reversal of the trial court's order revoking community supervision; (3) in his opinion, the appeal is without merit; (4) he served a copy of this brief on appellant; (5) he forwarded a complete copy of the appellate record to appellant; and (6) he informed appellant of his right to file a brief on his own behalf. See id. at 744-45; see also Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). More than thirty days have passed, and appellant has not filed any pro se brief. See Anders, 386 U.S. at 744-45; see also High, 573 S.W.2d at 813.

         An Anders brief must provide references to authority and the record to demonstrate why there are no arguable grounds to advance. High, 573 S.W.2d at 812. Although counsel's brief does not advance any arguable grounds of error, it does present a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see High, 573 S.W.2d at 812. We conclude counsel's brief meets the requirements of Anders. Anders, 386 U.S. at 744-45; see High, 573 S.W.2d at 812.

         Rule 25.2(d) provides that "[t]he appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record under these rules." Tex. R. App. P. 25.2(d). In this case the certification shows that appellant does not have the right of appeal, therefore a certification that shows he has the right of appeal has not been made part of the record. See id. The Supreme Court has advised appellate courts, however, that upon receiving a "frivolous appeal" brief, they must conduct "a full examination of all the proceeding[s] to decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.–Corpus Christi 2003, no pet.). Therefore, a certification showing no right to appeal does not eliminate our duty to perform an independent review of the record upon receipt of an Anders brief. 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.); Escochea v. State, No. 13-01-761-CR, 2004 Tex. App. LEXIS 5366, at *4 (Tex. App.–Corpus Christi June 17, 2004, no pet. h.).

III. Independent Review of Record

         After examining the record, we first conclude appellant did not waive his right to appeal. Compare Chavez, 2004 Tex. App. LEXIS 5100, at *37-*40 (did not execute waiver of right to appeal) with Escochea, 2004 Tex. App. LEXIS 5366, at *4, *38-*41 (executed waiver of right to appeal). Our review also reveals that the plea bargain in this case incorporated an agreed recommendation as to punishment that was 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, from this negotiated guilty plea, under Anders and Penson, at this time we are required to independently review the record: (1) following revocation of regular community supervision, for any error in the revocation proceeding; (2) following a deferred adjudication of guilt, for errors unrelated to the conviction; (3) for jurisdictional defects; (4) for matters raised by motion ruled on before trial; (5) for all matters the trial court granted permission to appeal; and (6) for the legality of sentence imposed as authorized by law. Chavez, 2004 Tex. App. LEXIS 5100, at *31-*32.

         We have carefully reviewed the record and have found nothing that would arguably support an appeal. See Stafford, 813 S.W.2d at 509. Specifically, from this deferred adjudication of guilt, we find nothing in the record that reveals arguable error unrelated to appellant's conviction. Moreover, nothing in the record reveals jurisdictional defects, matters raised by written motion ruled on before trial, matters for which the trial court granted permission to appeal, or an illegal sentence. See id. We agree with counsel that the appeal is wholly frivolous. The record does not substantiate that appellant has any right of appeal in this case. It follows that the record does not, and cannot, contain a certification showing appellant has the right of appeal in this case. See Tex. R. App. P. 25.2(d).

IV. Conclusion

         We conclude the appeal is without merit. Accordingly, we dismiss this appeal. See Tex. R. App. P.25.2(d); see also Chavez, 2004 Tex. App. LEXIS 5100, at *42.

         Additionally, we order counsel to notify appellant of the disposition of his appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).                                                                                                                            NELDA V. RODRIGUEZ

                                                                        Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 1st day of July, 2004.