Guadalupe Pacheco v. State
Opinion
NUMBER 13-15-00252-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
GUADALUPE PACHECO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 377th District Court of Victoria County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Justice Garza
Appellant Guadalupe Pacheco entered an “open” plea of guilty to one count of
aggravated assault, a second-degree felony offense, see TEX. PENAL CODE ANN. §
22.02(a)(2), (b) (West, Westlaw through 2015 R.S.), and one count of evading arrest or detention, a third-degree felony offense. See id. § 38.04(a), (b)(2)(A) (West, Westlaw
through 2015 R.S.). Following a punishment hearing, the trial court sentenced appellant
to twenty years’ imprisonment and a $10,000 fine on the aggravated assault offense and
to ten years’ imprisonment and a $10,000 fine on the evading arrest offense, with the
sentences ordered to run concurrently. Appellant’s court-appointed counsel has filed an
Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
has filed a brief and a motion to withdraw with this Court, stating that his review of the
record yielded no grounds of error upon which an appeal can be predicated. 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) and Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014),
appellant’s counsel carefully discussed why, under controlling authority, there is no
reversible error in the trial court's judgment. Counsel has informed this Court, in writing,
that counsel has: (1) notified appellant that counsel has filed an Anders brief and a motion
to withdraw; (2) provided the appellant with copies of both pleadings; and (3) informed
2 the appellant of appellant’s rights to file a pro se response,1 and review the record
preparatory to filing that response. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at
319–320, Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409
n.23.
The record shows that appellant was provided a copy of the record on August 21,
2015. After this Court granted several motions for extension of time in which to file his
pro se response, appellant filed his pro se response on February 25, 2016.
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). When an Anders brief and a subsequent pro se response are filed, a court
of appeals reviews the entire record, and: (1) determines that the appeal is wholly
frivolous and issues an opinion explaining that it finds no reversible error; or (2)
determines that there are arguable grounds for appeal and remands the case to the trial
court for appointment of new appellate counsel. Bledsoe v. State, 178 S.W.3d 824, 826–
27 (Tex. Crim. App. 2005). If the court finds arguable grounds for appeal, it may not
review those grounds until after new counsel has briefed those issues on appeal. Id.
We have reviewed the entire record, counsel’s brief, and appellant’s pro se
response, and we have found nothing that would arguably support an appeal. See id. at
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.)). 3 827–28 (“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. There is no reversible error in the record. Accordingly, the
judgment of the trial court is affirmed.
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.) (“[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 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 this opinion and this Court’s judgment to appellant and to 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 at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim.
App. 2006).
DORI CONTRERAS GARZA, Justice
2 No substitute counsel will be appointed. Should appellant wish to seek further review of this case 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 or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the court of criminal appeals, see id. R.
Free access — add to your briefcase to read the full text and ask questions with AI
Guadalupe Pacheco v. State (Guadalupe Pacheco v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.