Herman Alfredo Lopez v. State

Opinion

Opinion issued April 9, 2020

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00358-CR ——————————— HERMAN ALFREDO LOPEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 212th District Court Galveston County, Texas Trial Court Case No. 16-CR-2498

MEMORANDUM OPINION

Appellant, Herman Alfredo Lopez, pleaded not guilty to the felony offense

of possession with intent to deliver more than 400 grams of a controlled substance.

TEX. HEALTH & SAFETY CODE § 481.113(a), (e). Appellant was convicted and

sentenced by a jury to 20 years’ confinement in the Texas Department of Criminal Justice. The jury also assessed a fine of $8,000. Appellant timely filed a notice of

appeal.

Appellant’s appointed counsel on appeal has filed a motion to withdraw,

along with a brief stating that the record presents no reversible error and the appeal

is without merit and is frivolous. See Anders v. California, 386 U.S. 738 (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 id.; see also High v. State, 573 S.W.2d 807, 812 (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;

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

pet.). Appellant filed a motion to access the appellate record but did not file a pro

se response.1

1 Counsel’s motion to withdraw informed this Court about his unsuccessful attempts to contact Appellant:

Defendant is no longer in TDCJ-ID custody since December 19, 2019. Movant was advised by TDCJ-ID that Defendant was removed to ICE custody. Movant is unable to locate Defendant in the ICE system. Movant has had no return response from Defendant’s contact numbers.

We note that the Clerk of this Court sent notice that an Anders’s brief had been filed and that, if Appellant wished to file a response, then it was due on February 5, 2020, to Appellant’s last known address. The notice was returned with the notation “return to sender . . . unable to forward.” 2 We have independently reviewed the entire record in this appeal, and we

conclude that no reversible error exists in the record, there are no arguable grounds

for review, and the appeal is frivolous. See Anders, 386 U.S. at 744 (emphasizing

that reviewing court—and 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 (reviewing court

determines whether arguable grounds exist by reviewing entire record). We note

that an appellant may challenge a holding that there are no arguable grounds for

appeal by filing a petition for discretionary review in the Texas 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 Zachary Maloney must immediately send Appellant the

required notice and file a copy of the notice with the Clerk of this Court. See TEX.

R. APP. P. 6.5(c). We dismiss any pending motions as moot.

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 Texas Court of Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (en banc). 3 PER CURIAM Panel consists of Justices Lloyd, Landau, and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).