Henry Molina v. State

• Court: Court of Appeals of Texas
• Decided: December 30, 2013
• Docket: 13-12-00189-CR
• Status: Published

Opinion

NUMBER 13-12-00189-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

HENRY MOLINA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 347th District Court of Nueces County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion by Justice Longoria

The State charged appellant Henry Molina by indictment with causing bodily

injury to a child, a third-degree felony enhanced to a second-degree felony by one prior

felony conviction. See TEX. PENAL CODE ANN. §§ 22.04, 12.42(a) (West 2011). Appellant pleaded not guilty, and the case was tried to a jury. The jury returned a

verdict of guilty. Appellant pleaded “true” to a single enhancement paragraph consisting

of a prior felony conviction for burglary. The jury assessed punishment at five years in

the Texas Department of Criminal Justice—Institutional Division and no fine. This

appeal followed. 1

I. ANDERS BRIEF

Appellant’s court-appointed appellate counsel has filed a brief and motion to

withdraw with this Court pursuant to Anders v. California, 386 U.S. 738, 744 (1967),

stating that his review of the record yielded no grounds of error upon which to base an

appeal. 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, 406 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, 507 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978), 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 that he has: (1) examined the record and found no arguable grounds to advance

1 We twice abated this case to the trial court, first for appointment of new counsel when appellant’s original counsel did not file a brief, and again on the motion of appellant’s new counsel in order to locate several items that were omitted from the clerk’s record. See TEX. R. APP. P. 34.5(c).

2 on appeal; 2 (2) served a copy of the brief and counsel’s motion to withdraw on

appellant; and (3) informed appellant of his right to review the record and to file a pro se

response. 3 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 a sufficient amount of time has

passed, and appellant has not responded by filing a pro se response.

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, including counsel’s appellate

brief, and we have found no reversible error. 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 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.”). Accordingly, we affirm the judgment of the trial court.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s attorney requests 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,

2 Counsel informs us that he specifically considered the possibility of advancing three grounds: (1) a challenge to the sufficiency of the evidence; (2) a challenge to the admission of certain evidence (the recording of a 911 call); and (3) arguing that appellant’s trial counsel provided constitutionally deficient representation. 3 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 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. Counsel is ordered to send a copy of this opinion and this Court’s

judgment to appellant within five days of the date of this Court’s opinion and to advise

appellant of his right to file a petition for discretionary review with the court of criminal

appeals. 4 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).

NORA L. LONGORIA Justice Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 30th day of December, 2013.

4 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. 68.3. Any petition for discretion review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. Id. R. 68.4.