Herber Bal Aparicio-Cabrera v. State

Opinion

Opinion issued December 3, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-01005-CR ——————————— HERBER BAL APARICIO-CABRERA, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court Harris County, Texas Trial Court Case No. 1315369

MEMORANDUM OPINION

Appellant, Herber Bal Aparicio-Cabrera, appeals from his conviction for

possession with intent to deliver a controlled substance. See TEX. HEALTH &

SAFETY CODE ANN. § 481.112 (West 2010). Appellant entered an open plea of guilty to the charged offense. The trial court sentenced appellant to nine years’

confinement and certified appellant’s right to appeal. Appellant filed a timely

notice of appeal.

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

withdraw, along with an Anders brief stating that the record presents no reversible

error and therefore the appeal is without merit and is frivolous. See Anders v.

California, 386 U.S. 738, 87 S. Ct. 1396 (1967).

Counsel’s brief meets the Anders requirements by presenting a professional

evaluation of the record and supplying us with references to the record and legal

authority. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State,

573 S.W.2d 807, 812−13 (Tex. Crim. App. 1978). Counsel indicates that he has

thoroughly reviewed the record and is unable to advance any grounds of error that

warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State,

193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

Counsel has also informed us that he delivered a copy of the brief to

appellant and informed him of his right to examine the appellate record and to file

a response. See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008).

Appellant has not filed a pro se response.

We have independently reviewed the entire record in this appeal, and we

conclude that (1) no reversible error exists in the record, (2) there are no arguable

2 grounds for review, and (3) therefore the appeal is frivolous. See Anders, 386 U.S.

at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court―not

counsel―determines, after full examination of proceedings, whether appeal is

wholly frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009)

(reviewing court must determine whether arguable grounds for review exist);

Bledsoe v. State, 178 S.W.3d 824, 826−27 (Tex. Crim. App. 2005) (same);

Mitchell, 193 S.W.3d at 155 (same). Appellant may challenge our holding that

there are no arguable grounds for appeal by filing a petition for discretionary

review in the Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.

We affirm the judgment of the trial court and grant counsel’s motion to

withdraw. 1 Attorney David L. Garza must immediately send the notice required by

Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice with the

Clerk of this Court. See TEX. R. APP. P. 6.5(c).

PER CURIAM Panel consists of Justices Keyes, Higley, and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).

1 Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). 3