Herber Bal Aparicio-Cabrera v. State

• Court: Court of Appeals of Texas
• Decided: February 20, 2014
• Docket: 01-12-01006-CR
• Status: Published

Opinion

Opinion issued February 20, 2014

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-01006-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. 1315370

MEMORANDUM OPINION

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

theft. See TEX. PENAL CODE ANN. § 31.03 (West Supp. 2013). 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).

In his pro se response, appellant asserts his inability to understand English

and complains of his counsel’s representation. We have reviewed each of

appellant’s complaints and find that they are without support in the record. As to

appellant’s assertion regardings his inability to understand English, the record

2 shows that appellant signed written admonishments in conjunction with his guilty

plea acknowledging that appellant reads and writes/understands English, that he

understood the admonishments of the trial court, that he understood the

consequences of his plea, and that he freely, knowingly, and voluntarily executed

his statement. See Sinay v. State, No. 14-97-01420-CR, 1999 WL 771084, at *1

(Tex. App.—Houston [14th Dist.] Sept. 30, 1999, no pet.) (not designated for

publication) (acknowledgement that appellant reads and writes English undermines

appellant’s claim). Appellant also stated in open court that he spoke English.1 We

conclude that the record contains ample evidence that appellant understands

English. The record contains no evidence that he does not.

Accordingly, after an independent reviewed the entire record in this appeal,

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

arguable 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);

1 We note that the documents filed in this Court by appellant are handwritten in English. See Luna v. State, No. 05-98-01615-CR, 1999 WL 732951, at *1 n.1 (Tex. App.—Dallas Sept. 21, 1999, no pet.) (not designated for publication). 3 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.2 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 Jennings, Higley, and Sharp. Do not publish. TEX. R. APP. P. 47.2(b).

2 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). 4