Francisco Flores Zavala v. State

• Court: Court of Appeals of Texas
• Decided: December 3, 2009
• Docket: 13-07-00689-CR
• Status: Published

Opinion

NUMBER 13-07-00689-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

FRANCISCO FLORES ZAVALA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 206th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Justice Garza

Appellant, Francisco Flores Zavala, was charged by indictment with six counts of

indecency with a child by exposure, a third-degree felony. See TEX . PENAL CODE ANN . §

21.11(a)(2)(A), (d) (Vernon 2003). Zavala pleaded guilty to three of the charges alleged

in the indictment without the benefit of a plea agreement. The trial court accepted Zavala’s

guilty plea, found him guilty of the three charges, and sentenced him to five years’

incarceration in the Institutional Division of the Texas Department of Criminal Justice with no fine for the three counts.1 The sentences were ordered to run concurrently, and the

remaining charges were left unadjudicated.2 The trial court also certified Zavala’s right to

appeal, and he now brings this appeal. We affirm.

I. ANDERS BRIEF

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), Zavala’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.

Though counsel presents “issues” in his brief, he concludes that these “issues” lack merit

and that any appeal in this case would be frivolous. See id. Counsel’s brief meets the

requirements of Anders as it presents a professional evaluation demonstrating why there

are no arguable grounds to advance 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).

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

1978), Zavala's appellate 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)

1 The punishm ent range for third-degree felonies is im prisonm ent for two to ten years and an optional fine of not m ore than $10,000. See T EX . P EN AL C OD E A N N . § 12.34 (Vernon 2003).

2 Zavala adm itted to having com m itted all of the offenses alleged in the indictm ent; however, Zavala only pleaded guilty to three of the charges, and he and the State agreed to allow the trial court to consider the rem aining three charges as “adm itted unadjudicated offense[s].” The trial court considered the rem aining charges at the punishm ent phase of trial and signed an order on October 15, 2007, barring the State from prosecuting Zavala for the rem aining charges. 2 served a copy of the brief and counsel’s motion to withdraw on Zavala, and (3) informed

Zavala of his right to review the record and to file a pro se response.3 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 Zavala has not filed a pro

se response. 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 and counsel's brief and 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.

III. MOTION TO WITHDRAW

In accordance with Anders, Zavala’s attorney has asked this Court for permission

to withdraw as counsel. 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

3 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 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 Zavala and to advise Zavala of his right to file a petition for

discretionary review.4 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).

________________________ DORI CONTRERAS GARZA Justice

Do Not Publish. TEX . R. APP. P. 47.2(b) Delivered and filed the 3rd day of December, 2009.

4 No substitute counsel will be appointed. Should Zavala 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 C ourt of C rim 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.