Eliborio Cantu v. State

• Court: Court of Appeals of Texas
• Decided: July 2, 2009
• Docket: 13-08-00172-CR
• Status: Published

Opinion

NUMBER 13-08-00172-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ELIBORIO CANTU, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court of Kleberg County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Benavides Memorandum Opinion by Chief Justice Valdez

In 2003, appellant, Eliborio Cantu, was indicted for the offense of possession of

more than 50 pounds but less than 2000 pounds of marihuana, a second-degree felony.

See TEX . HEALTH & SAFETY CODE ANN . § 481.121(a), (b)(5) (Vernon 2003). Cantu entered

into a plea agreement with the State in which he pleaded nolo contendere to the indicted

offense in exchange for a recommendation by the State that he receive deferred adjudication and be placed on community supervision for five years. See TEX . CODE CRIM .

PROC . ANN . art. 42.12 (Vernon Supp. 2008). At a hearing on May 3, 2004, the trial court

accepted the plea agreement, deferred adjudication, placed Cantu on community

supervision, and assessed a $5,000 fine.

On January 22, 2007, the State moved to revoke Cantu’s community supervision

and adjudicate guilt on the grounds that he violated community supervision terms by, inter

alia, committing the offense of possession of marihuana on October 12, 2006. Cantu

answered “true” to several of the allegations made in the motion to revoke. The trial court

granted the State’s motion, rendered a judgment of guilt, sentenced Cantu to twenty years’

confinement, ordered the sentence to run concurrently with a six-year federal sentence for

narcotics trafficking, and assessed a $10,000 fine. Cantu’s court-appointed appellate

counsel has filed an Anders brief. We affirm.

I. ANDERS BRIEF

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), Cantu’s court-appointed

appellate counsel has filed a brief with this Court, stating that his review of the record

yielded no grounds or error upon which an appeal can be predicated. 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

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 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex.

Crim. App. 1991).

2 In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]

1978), Cantu’s counsel has carefully discussed why, under controlling authority, there are

no errors in the trial court’s judgment. Counsel has informed this Court that he has: (1)

examined the record and found no arguable grounds to advance on appeal, (2) served a

copy of the brief and counsel’s motion to withdraw on Cantu, and (3) informed Cantu of his

right to review the record and to file a pro se response within thirty days.1 See Anders, 386

U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409

n.23. More than an adequate period of time has passed, and Cantu has filed a pro se

response in which he argues that his trial counsel provided ineffective assistance. See In

re Schulman, 252 S.W.3d at 409.

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, counsel’s brief, and Cantu’s pro se

response, and we have found nothing that would arguably support an appeal. See

Bledsoe v. State, 178 S.W.3d 824, 826-28 (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.

1 The Texas Court of Crim inal Appeals has held that “the pro se response need not com ply 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 m eritorious issues.” In re Schulman, 252 S.W .3d 403, 409 n.23 (Tex. Crim . App. 2008) (quoting W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App.–W aco 1997, no pet.)). 3 III. MOTION TO WITHDRAW

In accordance with Anders, Cantu’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 (citing Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex. App.–Dallas

1995, no pet.) (noting that “[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 motion to withdraw.

Within five days of the date of this Court’s opinion, counsel is ordered to send a copy of

the opinion and judgment to Cantu and to advise him of his 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).

________________________ ROGELIO VALDEZ Chief Justice Do Not Publish. TEX . R. APP. P. 47.2(b) Memorandum Opinion delivered and filed this the 2nd day of July, 2009.

2 No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Crim inal Appeals, he m ust 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 m ust be filed within thirty days from the date of either this opinion or the last tim ely m otion for rehearing that was overruled by this Court. See T EX . R. A PP . P. 68.2. Any petition for discretionary review m ust be filed with this Court, after which it will be forwarded to the Texas Court of Crim inal Appeals. See T EX . R. A PP . P. 68.3; 68.7. Any petition for discretionary review should com ply with the requirem ents of Rule 68.4 of the Texas Rules of Appellate Procedure. See T EX . R. A PP . P. 68.4.