Guadalupe Bustillos v. State

Opinion

NUMBER 13-09-00298-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

GUADALUPE BUSTILLOS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court of San Patricio County, Texas.

MEMORANDUM OPINION

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

On February 21, 2001, appellant Guadalupe Bustillos was tried on one count of

aggravated assault with a deadly weapon, a second-degree felony. See TEX . PENAL CODE

ANN . § 22.02(a)(2) (Vernon Supp. 2009). A jury found Bustillos guilty of the offense and

sentenced him to five years’ imprisonment and assessed a fine of $2,000.00. His

sentence, however, was suspended and he was placed on community supervision for five

years. See TEX . CODE CRIM . PROC . ANN . art. 42.12, § 5(a) (Vernon Supp. 2009). On February 27, 2009, the State filed a motion to revoke, alleging that Bustillos violated three

different terms of his community supervision.1 Bustillos pleaded “true” to all three of the

allegations. The trial court found Bustillos guilty of the underlying offense and sentenced

him to five years’ confinement in the Institutional Division of the Texas Department of

Criminal Justice. The trial court certified Bustillos’s right to appeal, and this appeal

followed. We affirm.

I. ANDERS BRIEF

Bustillos’s court-appointed appellate counsel has filed a motion to withdraw and a

brief in support thereof, stating that his review of the record yielded no grounds or error

upon which an appeal can be predicated. See Anders v. California, 386 U.S. 738, 744

(1967) (“[t]here are no arguable points of error, fundamental or otherwise, upon which

appellant could obtain relief from the conviction in the trial court . . . .”). Counsel’s brief

therefore meets the requirements of Anders as it presents a professional evaluation

showing why there are no arguable grounds for advancing an appeal. See In re Schulman,

252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008); Stafford v. State, 813 S.W.2d 503, 510

n.3 (Tex. Crim. App. 1991) (en banc).

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

1978), 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 has found no arguable grounds to advance on appeal; (2) served a copy

of the brief and motion to withdraw on Bustillos; and (3) informed Bustillos of his right to

1 Since Bustillos’s trial in 2001, the State had filed five separate m otions to revoke his com m unity supervision. Each m otion to revoke resulted in either m odification to the term s of the com m unity supervision, or an extension of the com m unity supervision. At the tim e of the hearing on the State’s February 27, 2009 m otion to revoke, Bustillos had already been on com m unity supervision for nine years.

2 review the record and to file a pro se response.2 See Anders, 386 U.S. at 744; Stafford,

813 S.W.2d at 510 n.3. 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 case is wholly frivolous. Penson v. Ohio, 488 U.S.

75, 80 (1988). We have reviewed the record and find that the appeal is wholly frivolous

and without merit. 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, Bustillos’s counsel has filed a motion to withdraw. 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.) (“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 further order that counsel must, within five days of the date of this opinion, send

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

for discretionary review.3 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 19th day of August, 2010.

3 No substitute counsel will be appointed. Should Bustillos 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 Court of Crim inal Appeals. See T EX . R. A PP . P. 68.3, 68.7. Any petition for discretionary review m ust 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. 4