Guadalupe Andrew Cervantes v. State

• Court: Court of Appeals of Texas
• Decided: January 20, 2011
• Docket: 13-10-00137-CR
• Status: Published

Opinion

NUMBER 13-10-137-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

GUADALUPE ANDREW CERVANTES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 214th District Court of Nueces County, Texas.

MEMORANDUM OPINION Before Justices Garza, Benavides, and Vela Memorandum Opinion by Justice Vela Appellant, Guadalupe Andrew Cervantes, was charged with causing serious bodily injury with a deadly weapon, involving family violence. TEX. PENAL CODE ANN. §

22.02(b)(1) (Vernon Supp. 2010). He pleaded guilty without a plea bargain agreement

and elected for the jury to assess punishment. Evidence was presented by both sides,

and the jury assessed punishment at life imprisonment. Cervantes was also assessed a

ten thousand dollar fine. We affirm.

I. ANDERS BRIEF

Cervantes’s appellate counsel has filed a motion to withdraw and a brief in support

thereof in which he states that he has diligently reviewed the entire record and has

concluded that there “are no meritorious issues to bring forward for review.” See Anders

v. California, 386 U.S. 738, 744 (1967). In compliance with High v. State, 573 S.W.2d

807, 813 (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 copies of the brief and motion to withdraw on Cervantes; and (3) informed

Cervantes of his right to review the record and to file a pro se response.1 See Anders,

386 U.S. at 744; Stafford v. State, 813 S.W.2d 503, 510 n. 3 (Tex. Crim. App. 1991).

More than an adequate time has passed, and no pro se response has been filed.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488

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) (orig. proceeding) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.–Waco 1997, no pet.)).

2 U.S. 75, 80 (1988). We have reviewed the record and have found nothing that would

arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim.

App. 2005) (“Due to the nature of Anders briefs, by indicating in the opinion it considered

the issues raised in the brief and reviewed the record for reversible error but found none,

the court of appeals met the requirements 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, Cervantes's counsel has filed a motion to withdraw as

his appellate 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 “If 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 brief showing the

appellate court that the appeal is frivolous.”) (citations omitted)). We grant the motion to

withdraw.

We order that counsel must, within five days of the date of this opinion, send a

copy of the opinion and judgment to Cervantes and advise him of his right to file a petition

for discretionary review.2 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d

2 No substitute counsel will be appointed. Should Cervantes wish to seek further review by the Texas Court of Criminal Appeals, he must 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 must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3, 68.7. Any petition for discretionary review must comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.

3 403, 412 n. 35 (Tex. Crim. App. 2008) (orig. proceeding); Ex parte Owens, 206 S.W.3d

670, 673 (Tex. Crim. App. 2006).

ROSE VELA Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 20th of January, 2011.