Gavino Aguilera v. State

• Court: Court of Appeals of Texas
• Decided: August 24, 2006
• Docket: 13-06-00063-CR
• Status: Published

Opinion

NUMBER 13-06-063-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

GAVINO AGUILERA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 156th District Court

of Live Oak County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Rodriguez, and Garza

Memorandum Opinion by Justice Rodriguez

Appellant, Gavino Aguilera, was charged by indictment with one count of retaliation assault against a public servant. Tex. Pen. Code Ann. § 22.01(b)(1) (Vernon 2003 & Supp. 2005). Appellant entered a plea of guilty, and the trial court assessed punishment at three years' confinement in the Texas Department of Criminal Justice-Institutional Division and a $5,000 fine.

Appellant's court-appointed counsel has filed an Anders brief. We affirm.

I. Compliance with Anders v. California

Appellant's court-appointed counsel has filed an Anders brief in which he has concluded there are no arguable grounds for appeal and has moved to withdraw from the case. See Anders v. California, 386 U.S. 738, 744 (1967). The brief meets the requirements of Anders as it presents a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced on appeal. See id.; see also Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc); High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). Counsel has informed this Court that he has (1) examined the record and has found no arguable grounds to advance on appeal, (2) served a copy of the brief on appellant, and (3) informed appellant of his right to review the record and to file a pro se brief. See Anders, 386 U.S. at 744; see also Stafford, 813 S.W.2d at 509-10. 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 Stafford, 813 S.W.2d at 510.

II. Independent Review of Record

Upon receiving a "frivolous appeal" brief, we must conduct "a full examination of all the proceedings 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.). Accordingly, we have carefully reviewed the appellate record and counsel's brief. We find nothing in the record that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005). Therefore, we agree with counsel that the appeal is frivolous and without merit. See id. at 828 ("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.").

III. Conclusion

The judgment of the trial court is affirmed. Having affirmed the judgment, we now grant counsel's motion to withdraw. We order counsel to notify appellant of the disposition of this appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (en banc) (per curiam).

NELDA V. RODRIGUEZ

Justice

Do not publish.

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

Memorandum Opinion delivered and

filed this 24th day of August, 2006.