Iginio Feliciano Guzman A/K/A Iginio Guzman v. State

• Court: Court of Appeals of Texas
• Decided: April 21, 2016
• Docket: 13-15-00213-CR
• Status: Published

Opinion

NUMBER 13-15-00213-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IGINIO FELICIANO GUZMAN A/K/A IGINIO GUZMAN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 404th District Court of Cameron County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Justice Rodriguez Appellant Iginio Feliciano Guzman a/k/a Iginio Guzman was convicted of one count

of continuous sexual abuse of a young child and sentenced to twenty-five years in the

Texas Department of Criminal Justice, Institutional Division. See TEX. PENAL CODE ANN. § 21.02 (West, Westlaw through 2015 R.S.). This appeal followed.

Determining that any further proceedings on behalf of Guzman would be wholly

frivolous and without arguable merit, counsel filed an Anders brief in which he reviewed

the merits, or lack thereof, of the appeal. We affirm the judgment of the trial court.

I. COMPLIANCE WITH ANDERS

Pursuant to Anders v. California, Guzman's counsel filed a brief stating that, “[a]fter

review of the record, there are no issues of arguable merit in this case.” See 386 U.S.

738, 744–45 (1967). Counsel's brief meets the requirements of Anders as it presents a

professional evaluation showing why there are no meritorious grounds for advancing an

appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig.

proceeding) (“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) (en banc).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 318–19 (Tex. Crim. App. 2014), counsel

has demonstrated that he has complied with the requirements of Anders by discussing

why, under controlling authority, any appeal from the judgment would be without merit

and frivolous. Counsel specifically determined, after examining the record, that: (1) the

indictment was sufficient; (2) there were no adverse rulings on pretrial motions; (3) there

were no adverse rulings during voir dire, and no error, if any, was preserved for appellate

2 purposes; (4) there were no adverse rulings during trial; (5) there were no objections to

the jury charge; (6) the evidence was sufficient to sustain the conviction; (7) the sentence

was within the range of punishment allowed, and was reasonable under the law; (8) post-

trial, the trial court followed the State’s agreement to vacate Counts II, III, and IV; (9) at

the post-trial hearing on Guzman’s motion for new trial, the trial court properly denied the

motion on the basis of “no evidence” to support allegations of undue influence on a juror;

and (10) there was no fundamental error. Counsel has also informed this Court that

Guzman has been: (1) notified that counsel has filed an Anders brief and a motion to

withdraw as his counsel; (2) provided with copies of the pleadings; (3) informed of his

right to file a pro se response,1 to review the record preparatory to filing that response,

and to seek discretionary review if the court of appeals concludes that the appeal is

frivolous; and (4) provided with a form motion for pro se access to the appellate record,

with instructions to file the motion within ten days. See Anders, 386 U.S. at 744; Kelly,

436 S.W.3d at 318–19; Stafford, 813 S.W.2d 503, 510 n.3; see also In re Schulman, 252

S.W.3d at 409 n.23. An adequate time has passed, and Guzman has not filed either a

timely motion seeking pro se access to the appellate record or a motion for extension of

time to do so. And he has not filed a pro se response.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, this Court must conduct a full examination of all

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) (orig. proceeding) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).

3 proceedings to determine whether the case is wholly frivolous. Pension v. Ohio, 488

U.S. 75, 80 (1988). We have reviewed the entire record, and we have found nothing that

would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826–28 (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.”); Stafford, 813 S.W.2d at 509. Accordingly, we affirm the judgment of

the trial court.

III. MOTION TO WITHDRAW

In accordance with Anders, counsel has asked this Court to grant his motion to

withdraw as counsel for Guzman. 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.) (“If 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 that this Court carried with the case on March 18, 2016. Within five days of the

date of this Court's opinion, counsel is ordered to send a copy of the opinion and judgment

to Guzman and to advise Guzman of his right to pursue 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

2 No substitute counsel will be appointed. Should appellant wish to seek 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 that was overruled 4 parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

NELDA V. RODRIGUEZ Justice

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

Delivered and filed the 21st day of April, 2016.

by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals. See id. at R. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. at R. 68.4. 5