James Richard Parga v. State

Opinion

Opinion issued December 13, 2012

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-11-00999-CR ——————————— JAMES RICHARD PARGA, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 1194981

MEMORANDUM OPINION

Appellant, James Richard Parga, pursuant to an agreement with the State,

pleaded guilty to the offense of possession of a controlled substance, namely

cocaine, weighing at least 4 grams but less than 200 grams. See TEX. HEALTH &

SAFETY CODE ANN. §§.481.002(38), 481.102, 481.115 (West 2010). In accordance with appellant’s agreement with the State, the trial court deferred adjudication of

appellant’s guilt and placed him on community supervision for five years. The

State subsequently moved for adjudication, alleging that appellant had violated the

conditions of his community supervision by, inter alia, committing the offense of

driving while intoxicated. At the hearing on the motion, appellant pleaded true to

the allegation. The trial court found the allegation true, found appellant guilty of

the underlying offense, and assessed punishment at confinement for three years.

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 therefore

the appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396

(1967). We affirm the trial court’s judgment and grant counsel’s motion to

withdraw.

An attorney has an ethical obligation to refuse to prosecute a frivolous

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

appointed attorney finds a case to be wholly frivolous, his obligation to his client is

to seek leave to withdraw. Id. Counsel’s obligation to the appellate court is to

assure it, through an Anders brief, that, after a complete review of the record, the

request to withdraw is well-founded. Id. If, after an independent review of the

record, we agree that the appeal is wholly frivolous, we will grant the attorney’s

2 motion to withdraw and affirm the trial court’s judgment. See Garner v. State, 300

S.W.3d 763, 766 (Tex. Crim. App. 2009). If we conclude that arguable grounds

for appeal exist, we will grant the motion to withdraw, abate the case, and remand

it to the trial court to appoint new counsel to file a brief on the merits. See Bledsoe

v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).

Here, counsel’s brief meets the Anders requirements by presenting a

professional evaluation of the record. See Schulman, 252 S.W.3d at 410–11.

Counsel discusses the evidence adduced, supplies us with references to the record,

and provides us with citation to legal authorities. See id.; High v. State, 573

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

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

error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400;

Schulman, 252 S.W.3d at 406–07; Mitchell v. State, 193 S.W.3d 153, 155 (Tex.

App.—Houston [1st Dist.] 2006, no pet.).

The brief also reflects that counsel delivered a copy of the brief to appellant

and advised him of his right to file a pro se response. See Schulman, 252 S.W.3d

at 408. Appellant filed a pro se response, complaining that his sentence is

unreasonable and that his counsel was ineffective because he failed to present to

the trial court that appellant had fulfilled other conditions of his community

supervision.

3 We have independently reviewed the entire record, and we conclude that no

reversible error exists, that there are no arguable grounds for review, and that

therefore the appeal is frivolous. See Schulman, 252 S.W.3d at 407 n.12

(explaining that appeal is frivolous when it does not present any argument that

could “conceivably persuade the court”); Bledsoe, 178 S.W.3d at 826–27

(emphasizing that reviewing court—and not counsel—determines, after full

examination of proceedings, whether the appeal is wholly frivolous). Although we

may issue an opinion explaining why the appeal lacks arguable merit, we are not

required to do so. See Garner, 300 S.W.3d at 767. An appellant may challenge a

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 grant counsel’s motion to withdraw1 and affirm the trial court’s

judgment. Attorney J. Sidney Crowley 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). All other pending motions are

denied.

PER CURIAM

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 Texas Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). 4 Panel consists of Justices Jennings, Higley, and Sharp.

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