Gilbert Llamas A/K/A Gilbert Lamas A/K/A "Kilo G" v. State

• Court: Court of Appeals of Texas
• Decided: November 8, 2012
• Docket: 13-11-00416-CR
• Status: Published

Opinion

NUMBER 13-12-00239-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE MATTER OF L.T.P. II

On appeal from the 156th District Court of Bee County, Texas, Sitting as a Juvenile Court

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela Memorandum Opinion by Justice Rodriguez Appellant L.T.P. II appeals the juvenile court's order transferring him from the

Texas Youth Commission (TYC) to the Texas Department of Criminal Justice (TDCJ) to

complete his sentence. See TEX. FAM. CODE ANN. §§ 51.04(a), 54.11 (West 2008 &

Supp. 2011). Concluding that the record contains no error which was preserved for

appeal, appellant's counsel filed an Anders brief reviewing the merits, or lack thereof, of

the appeal. We affirm. In December 2006, appellant, as a juvenile, was found to have engaged in

delinquent conduct by committing aggravated assault with a deadly weapon and was

committed to the TYC for eleven years with a possible transfer to the TDCJ. See id. §§

53.045, 54.04 (West Supp. 2011). Appellant filed an Anders brief, and this Court

affirmed the judgment of the trial court. See In re L.T.P. II, a Juvenile, No.

13-07-00300-CV, 2008 Tex. App. LEXIS 5642, at *1 (Tex. App.—Corpus Christi, July 29,

2008, no pet.) (mem. op.).

On March 30, 2012, the trial court held a transfer hearing. At the hearing, the

State presented testimony from a court-liaison employee of the Texas Juvenile Justice

Department, formerly known as the TYC, concerning appellant’s experiences, character,

and progress while committed to the TYC. Appellant testified concerning his progress.

Appellant’s mother testified about family support that appellant would receive if the trial

court released him from the TYC and placed him on probation. At the conclusion of the

hearing, the trial court entered an order transferring appellant to the custody of the TDCJ

to serve the remainder of his sentence. Appellant appeals from the trial court's transfer

order.

I. COMPLIANCE WITH ANDERS V. CALIFORNIA

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

court-appointed appellate counsel has filed a brief with this Court, stating that he "has

searched the record and fails to find any arguable grounds for an appeal.” See id.; In re

D.A.S., 973 S.W.2d 296, 299 (Tex. 1998) (orig. proceeding) (applying procedures

enumerated in Anders to juvenile matters). Counsel’s brief discusses relevant portions

2 of the record as they pertain to the following: (1) that appellant’s sentence was within the

range of punishment for a second-degree felony; (2) that the evidence supported factors

the trial court considered at the release or transfer hearing, as set out in section 54.11(k)

of the family code; and (3) that the trial court had jurisdiction to transfer appellant who was

twenty years old at the time of the hearing. See TEX. FAM. CODE ANN. § 54.11(k) (West

Supp. 2011); In the Matter of J.J., 276 S.W. 3d 171, 176 (Tex. App.—Austin 2008, pet.

denied).

Counsel has carefully discussed why, under controlling authority, there is no error

upon which an appeal might be based. See High v. State, 573 S.W.2d 807, 813 (Tex.

Crim. App. [Panel Op.] 1978). Appellant’s counsel has informed this Court that he

reviewed matters in the record and researched the law applicable to the facts and issues

contained in the record. 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).

Counsel has certified to this Court that, in his professional opinion, the record

reflects no reversible error, he has found no grounds that would arguably support an

appeal, and the appeal is without merit and is frivolous. He has caused a copy of the

brief and his motion to withdraw as attorney of record to be delivered to appellant.

Counsel also informed appellant of his right to examine the record and to file a pro se

3 response.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 appellant 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

transfer order of the trial court.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant’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 1 The Texas Court of Criminal Appeals has held that “the pro se response need not comply 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 meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.–Waco 1997, no pet.)).

4 brief showing the appellate court that the appeal is frivolous”) (citations omitted)). We

grant counsel’s motion to withdraw that was carried with the case on August 29, 2012.

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

the opinion and judgment to appellant and to advise appellant of his right to file a petition

for further review.2 See TEX. FAM. CODE ANN. § 56.01(a) (West Supp. 2011); see also

TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206

S.W.3d 670, 673 (Tex. Crim. App. 2006).

NELDA V. RODRIGUEZ Justice

Delivered and filed the 8th day of November, 2012.

2 No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Supreme Court, he must either retain an attorney to file a petition for review or file a pro se petition for review. See In re C.A.V., No. 13-10-00147-CV, 2011 Tex. App. LEXIS 1108, *6 n.2 (Tex. App.—Corpus Christi Feb. 10, 2011, no pet.) (mem. op.). 5