Homero Erasmo Garza v. State

• Court: Court of Appeals of Texas
• Decided: March 21, 2013
• Docket: 13-12-00257-CR
• Status: Published

Opinion

NUMBER 13-12-00257-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

HOMERO ERASMO GARZA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 206th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion by Justice Longoria Appellant, Homero Erasmo Garza, appeals the trial court’s order revoking his

community supervision and sentencing him to a two-year prison term for the offense of

driving while intoxicated with two prior convictions, a third-degree felony. See TEX.

PENAL CODE ANN. § 49.04(b)(2) (West Supp. 2011). We affirm.

I. ANDERS BRIEF

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), 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. On its face, counsel’s brief appears to meet 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), appellant’s counsel has stated that, 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 on appeal; (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.1 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. Appellant has not responded by filing a timely pro se brief.

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 and counsel’s brief and find no

arguable grounds for appeal.

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.)).

2 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).

_______________________ NORA L. LONGORIA Justice Do not publish.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

Delivered and filed the 21st day of March, 2013.

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. Effective September 1, 2011, any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4. 3