Fabian Arguijo v. State

• Court: Court of Appeals of Texas
• Decided: January 13, 2015
• Docket: 07-14-00124-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-14-00124-CR

FABIAN ARGUIJO, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 222nd District Court Deaf Smith County, Texas Trial Court No. CR-13K-126, Honorable Roland D. Saul, Presiding

January 8, 2015

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Appellant Fabian Arguijo was convicted by jury of evading arrest with a motor

vehicle and sentenced to ten years of imprisonment.1 His court-appointed appellate

1 TEX. PENAL CODE ANN. § 39.04 (West 2013). counsel has filed a motion to withdraw and an Anders2 brief. We will grant counsel's

motion to withdraw and affirm the judgment of the trial court.

In November 2003, appellant was charged via indictment with the felony offense

of evading arrest with a motor vehicle. Prior to trial, appellant filed several motions

attempting to suppress his confession. The trial court denied the motions following a

hearing.

The State’s evidence at trial showed appellant came to the courthouse to discuss

his probation for another offense with his probation officer. He entered her office to do

so. By that time, a motion to revoke appellant’s probation had been filed and an arrest

warrant had been issued. When a deputy arrived and told appellant he was under

arrest, appellant pulled away and left the courthouse, ignoring warnings that he would

be committing an offense if he did so. He entered his car and sped away.

Appellant testified to a contrary version of the events. He told the jury he left the

probation office because he was “told that [he] wasn’t under arrest and [he] was to be

let go.” He testified he walked out of the office with deputies following him. He denied

being told he was under arrest or that he could not leave. He claimed parts of the

probation officer’s testimony and parts of the deputies’ testimony were false. He further

testified he turned himself in five days later.

2 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); see In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008).

2 The jury found appellant guilty as charged in the indictment and assessed

punishment as noted. Appellant’s motion for new trial was overruled by operation of

law.

Following his conviction, appellant filed notice of appeal. Thereafter, appellant's

appointed appellate counsel filed a motion to withdraw and a brief in support pursuant to

Anders in which he certifies that he has diligently reviewed the record and, in his

professional opinion, under the controlling authorities and facts of the case, there is no

reversible error or legitimate ground on which a non-frivolous appeal can arguably be

predicated. The brief discusses in detail the procedural history of the case and the

events at trial. Counsel discusses the applicable law and sets forth the reasons he

believes there are no arguably meritorious issues on which to appeal. Counsel has

certified that a copy of the Anders brief and motion to withdraw have been served on

appellant, and that counsel has provided appellant a copy of the appellate record and

informed him of his right to file a pro se response. Kelly v. State, 436 S.W.3d 313, 319

(Tex. Crim. App. 2014); Johnson v. State, 885 S.W.2d 641, 645 (Tex. App.—Waco

1994, pet. ref'd). By letter, this Court also notified appellant of his opportunity to submit

a response to the Anders brief and motion to withdraw filed by his counsel. Appellant

filed a response, raising several issues.3

In conformity with the standards set out by the United States Supreme Court, we

will not rule on counsel’s motion to withdraw until we have independently examined the

record. Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.—San Antonio 1997, no pet.). If

3 After appellant filed his response, he submitted a letter requesting an extension of time. Because his response had already been filed, his motion for extension of time is dismissed as moot.

3 this Court determines the appeal arguably has merit, we will remand it to the trial court

for appointment of new counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim.

App.1991).

By his Anders brief, counsel raises several grounds that could possibly support

an appeal, but explains why he concludes none show arguably reversible error. He

concludes the appeal is frivolous. We have reviewed each ground raised by counsel

and made an independent review of the entire record to determine whether there are

any arguable grounds which might support an appeal. See Penson v. Ohio, 488 U.S.

75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.

Crim. App. 2005). We have also considered appellant’s pro se response. We have

found no such arguable grounds supporting a claim of reversible error, and agree with

counsel that the appeal is frivolous.

Accordingly, we grant counsel's motion to withdraw4 and affirm the judgment of

the trial court.

James T. Campbell Justice

Do not publish.

4 Counsel shall, within five days after this opinion is issued, send appellant a copy of the opinion and judgment, along with notification of his right to file a pro se petition for discretionary review. TEX. R. APP. P. 48.4.