Jason Omar Moreno v. the State of Texas

Opinion

NUMBER 13-21-00409-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JASON OMAR MORENO, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 92nd District Court of Hidalgo County, Texas.

MEMORANDUM OPINION Before Justices Tijerina, Silva, and Peña Memorandum Opinion by Justice Tijerina

Appellant Jason Omar Moreno appeals the trial court’s denial of his motion for

post-conviction DNA testing. See TEX. CODE CRIM. PROC. ANN. arts. 64.01, 64.03

(“Chapter 64”). Appellant’s court-appointed counsel has filed an Anders brief stating that

there are no arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744

(1967). We affirm the trial court’s judgment. I. ANDERS BRIEF

Pursuant to Anders v. California, appellant’s court-appointed appellate counsel

filed a brief and a motion to withdraw with this Court, stating that her review of the record

yielded no grounds of reversible error upon which an appeal could be predicated. See id.

Counsel’s brief meets 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, 406 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–Edinburg 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) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014),

appellant’s counsel carefully discussed why, under controlling authority, there is no

reversible error in the trial court’s judgment. Appellant’s counsel also informed this Court

in writing that she: (1) notified appellant that counsel has filed an Anders brief and a

motion to withdraw; (2) provided appellant with copies of both pleadings; (3) informed

appellant of his rights to file a pro se response, to review the record prior to filing that

response, and to seek discretionary review if we conclude that the appeal is frivolous;

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

that only requires appellant’s signature and date with instructions to file the motion within

2 ten days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20; see also In re

Schulman, 252 S.W.3d at 408–09. Appellant has filed a pro se response.

When appellate counsel files an Anders brief and the appellant independently files

a pro se response, the court of appeals has two choices:

[i]t may determine that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error. Or, it may determine that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues.

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

omitted). We are “not required to review the merits of each claim raised in an Anders brief

or a pro se response.” Id. at 827. Rather, we must merely determine if there are any

arguable grounds for appeal. Id. If we determine that there are such arguable grounds,

we must remand for appointment of new counsel. Id. Reviewing the merits raised in a pro

se response would deprive an appellant of meaningful assistance of counsel. Id.

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 record counsel’s brief, and appellant’s pro se

response, and we have found nothing that would arguably support an appeal. See

Bledsoe v. State, 178 S.W.3d 824, 827–28 (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

requirements of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 511.

3 III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s counsel has asked this Court for

permission to withdraw as counsel. See Anders, 386 U.S. at 744; see also In re

Schulman, 252 S.W.3d at 408 n.17. We grant counsel’s motion to withdraw. Within five

days from 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.1 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).

IV. CONCLUSION

We affirm the trial court’s judgment.2

JAIME TIJERINA Justice

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

Delivered and filed on the 3rd day of August, 2023.

1 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. Any petition for discretionary review must be filed with the Clerk of the Texas Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4. 2 Because we have concluded that there are no non-frivolous issues, we deny appellant’s motion

requesting appointment of new counsel. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (providing that only if we determine there are arguable grounds, we will remand the case to the trial court for appointment of new counsel). For the same reason, we deny appellant’s motion requesting that we deny appellate counsel’s motion to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967) (allowing appellate counsel to withdraw when the appeal is frivolous).