Felipe Escobar, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: March 10, 2015
• Docket: 07-13-00250-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-13-00250-CR ________________________

FELIPE ESCOBAR, JR., APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 64th District Court Swisher County, Texas Trial Court No. A-4309-10-03; Honorable Robert W. Kinkaid, Jr., Presiding

March 10, 2015

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

In April 2010, pursuant to a plea agreement, Appellant, Felipe Escobar, Jr., pled

guilty to the offense of burglary of a habitation1 and was sentenced to five years

deferred adjudication community supervision with conditions. In November 2011, the

State moved to revoke Appellant’s community supervision and proceed to adjudication

alleging Appellant had violated various conditions of the order deferring an adjudication

1 See TEX. PENAL CODE ANN. § 30.02(c)(2) (West 2011). An offense under this section is a second degree felony. of guilt. In December 2011, Appellant pled true to the violations alleged by the State,

and in January 2012, the trial court issued an order continuing Appellant’s community

supervision and imposing additional conditions of supervision. In February 2013, the

State again moved to revoke Appellant’s community supervision and proceed to

adjudication alleging Appellant had violated various conditions of the original order as

modified. In July, Appellant pled true to the violations alleged by the State. Thereafter,

the trial court granted the State’s motion, issued its judgment adjudicating Appellant’s

guilt, and sentenced him to twelve years confinement and a fine of $1,000. In

presenting this appeal, counsel has filed an Anders2 brief in support of a motion to

withdraw. We grant counsel’s motion and affirm the judgment.

In support of his motion to withdraw, counsel certifies he has conducted a

conscientious examination of the record, and in his opinion, the record reflects no

potentially plausible basis for reversal of Appellant’s conviction. Anders v. California,

386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed.2d 493 (1987); In re Schulman, 52

S.W.3d 403, 406 (Tex. Crim. App. 2008). Counsel candidly discusses why, under the

controlling authorities, the record supports that conclusion. See High v. State, 573

S.W.2d 807, 813 (Tex. Crim. App. 1978). Counsel has demonstrated he has complied

with the requirements of Anders and In re Schulman by (1) providing a copy of the brief

to Appellant, (2) notifying him of his right to review the record and file a pro se response

if he desired to do so,3 and (3) informing him of his right to file a pro se petition for

2 Anders v. California, 386 U.S. 738, 87 S. Ct.1396, 18 L. Ed.2d 493 (1967).

3 Pursuant to Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014), counsel provided a copy of

the appellate record to Appellant.

2 discretionary review. In re Schulman, 252 S.W.3d at 408.4 The Clerk of this Court also

advised Appellant by letter of his right to file a response to counsel’s brief and Appellant

did file a response. The State elected not to file a brief.

When we have an Anders brief by counsel and a pro se response by an

appellant, we have two choices. We may determine that the appeal is wholly frivolous

and issue an opinion explaining that we have reviewed the record and find no reversible

error; Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (citing Anders,

386 U.S. at 744), or we may determine that arguable grounds for appeal exist and

remand the cause to the trial court so that new counsel may be appointed to brief

issues. Id. (citing Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991)).

We have independently examined the entire record to determine whether there

are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488

U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed.2d 300 (1988); In re Schulman 252 S.W.3d at

409; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We have found no

such grounds. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969).

After reviewing the record, counsel’s brief, and the pro se response, we agree with

counsel that there is no plausible basis for reversal. See Bledsoe, 178 S.W.3d at 826-

27.

4 Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary review upon execution of the Trial Court’s Certification of Defendant’s Right of Appeal, counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together with notification of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408 n.22 & 411 n.35. The duty to send the client a copy of this court’s decision is ministerial in nature, does not involve legal advice, and exists after the court of appeals has granted counsel’s motion to withdraw. Id. at 411 n.33. 3 Accordingly, the trial court’s judgment is affirmed and counsel’s motion to

withdraw is granted.

Patrick A. Pirtle Justice

Do not publish.